Plaintiff (Attorney Lee Sung-hwan et al., Counsel for plaintiff-appellant)

Goyang market (Law Firm TelbS, Attorney Lee Dong-hwan, Counsel for the defendant-appellant)

March 2, 2010

1. The defendant's rejection disposition against the plaintiff on August 7, 2009, such as those subject to the relocation measures and the compensation for relocation measures, shall be revoked in the second phase site for the Korean International Exhibition Complex, Goyang-si.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On July 26, 200, the Plaintiff obtained approval for the use of 99 square meters in a single-story steel-frame 99 square meters (hereinafter “instant building”) on the ground of the Yongsan-gu Bridge-dong (hereinafter referred to as the “Seodong”).

B. On August 24, 2007, the Defendant, as the implementer of the Korean International Exhibition Site development project (hereinafter “instant project”), publicly announced the area including the instant building owned by the Plaintiff as the business area of the instant project, and publicly announced the compensation plan under Article 2006-587 of the Goyang-si Public Notice No. 2006-7 of the Goyang-si.

C. On December 20, 2006, the Plaintiff and the Defendant entered into a contract for indemnity of obstacles to the instant building upon the execution of the instant project, and the Plaintiff received indemnity of obstacles.

D. The Plaintiff filed an application with the Defendant for the selection of the owner of the instant building incorporated within the instant project zone as the subject of relocation measures. However, the Defendant: (a) the instant building was permitted as an agricultural warehouse; and (b) the Plaintiff used the building for residential purpose, even though it was not a person subject to relocation measures; and (c) the Plaintiff responded to the purport that the relocation measures are not possible,

[Reasons for Recognition] Uncontentious Facts, Gap 1, 2, 7 evidence, Eul 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

From July 6, 200, the base date of relocation measures, the Plaintiff resided together with his family in the instant building from July 6, 200 to the present date, and the “residential building” subject to relocation measures under Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) refers to a building actually used for residential purposes regardless of its public purpose. Therefore, the instant building constitutes a residential building subject to relocation measures. Therefore, the instant disposition by the Defendant is unlawful.

2) The defendant's assertion

Although the building of this case is permitted as an agricultural warehouse, it is used for residential purposes by changing its use without permission or reporting under the Building Act. Thus, it cannot be deemed a legitimate residential building, and it cannot be deemed a residential building subject to relocation measures under Article 78(1) of the Public Works Act.

In addition, if a project operator selects a person who shall establish and implement specific measures for relocation among those subject to measures for relocation, he/she shall have the discretion to determine the quantity of housing supplied within a reasonable scope by comprehensively taking into account various circumstances about the selection. Therefore, the instant disposition cannot be deemed unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Among the measures for resettlement of the instant project announced by the Defendant, the measures for the relocation of migrants are to supply one parcel per household to the person (registration in the resident registration) who has owned and continuously resided in a legitimate residential building in the project district from before June 23, 2006, which is the date of the public inspection and announcement of the said project, until the date of concluding a compensation contract or the date of expropriation.

2) The instant building has not been registered, and its use has been registered in the building ledger for warehouse (agricultural purposes) from the date of approval for use until the date of registration for use.

3) According to the construction laws and regulations at the time of approval for use of the instant building, only an application for change of the entries in the building ledger was possible without reporting a change of use.

[Reasons for Recognition] Uncontentious Facts, Gap 1, 2, 7 evidence, Eul 1, the purport of the whole pleadings

D. Determination

1) Whether the instant building constitutes a residential building under the Public Works Compensation Act

Article 78(1) of the Public Works Act provides land, etc. necessary for the implementation of public works in terms of guaranteeing the livelihood of the people, and at the same time restores the previous living conditions to the migrants who lose their base of livelihood, and as part of the so-called living compensation in order to guarantee the living worthy of human beings. Therefore, a person who provides a building which has been living as a basis of a basis of living for a public project shall be deemed as a person subject to relocation measures as stipulated in the Public Works Act regardless of the purpose of the public register of the building used for a residential purpose and shall provide a livelihood corresponding to the previous living environment. Thus, the meaning of "residential building" under Article 78(1) of the Public Works Act shall be determined according to whether the building is actually used for a residential purpose regardless of the purpose of the public register, and if a building actually used for a public project was provided for the implementation of the public works project, the provider shall be subject to relocation measures under Article 40(3) of the Enforcement Decree of the Public Works Act (i.e., a tenant without permission or a tenant)., within the scope of the Act.

In light of the overall purport of the arguments in Gap 3, 4, 5, 6, 7, 9, and 10 evidence, the plaintiff can be acknowledged that the plaintiff had resided in the building of this case from September 9, 200 after the moving-in report was completed on September 23, 200, which was before the project base date of the relocation plan of this case (the date of June 23, 2006). Thus, the building of this case constitutes "residential building" under Article 78 (1) of the Public Works Compensation Act regardless of the purpose of the public register, and the plaintiff did not have any reason for exclusion under each subparagraph of Article 40 (3) of the Enforcement Decree of the Public Works Act (it cannot be deemed that the plaintiff constitutes "the owner of a building constructed without obtaining permission or filing a report" under Article 40 (3) 1 of the above Enforcement Decree. Thus, the disposition of this case in the premise that the plaintiff's moving-in report of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

[Attachment]

Judges Kim Dong-dong (Presiding Judge)