(영문) 대법원 2021.7.29. 선고 2019도13010 판결

1. Whether a person subject to settlement of cash possessed by the land or a building within the housing redevelopment and rearrangement project zone or a lessee has an obligation to deliver the land, etc. to the project implementer by the commencement date of expropriation,

Article 43 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Land Compensation Act") provides that "the landowner or person concerned, or any other person who is not a landowner or person concerned, but a person who has a right to the land to be expropriated or used or a person who is not a landowner or person concerned, shall deliver or transfer such land or goods to the project operator by the commencement date of expropriation or use," and such person shall be punished by the person who has not transferred or has not transferred such

Article 49(6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents") provides that when authorization and public notice of a management and disposal plan is granted, no owner, superficies, person holding a right, such as the owner, superficies, leaseer, etc. of the previous land or structure shall use or benefit from the previous land or structure until the date of public notice of relocation under Article 54: Provided, That the same shall not apply to a right holder whose consent has been obtained from a project operator or whose compensation has not been completed under Article 40 and the Land Compensation Act. This provision is a special provision for Article 43 of the Land Compensation Act, and in order for a project operator to have the previous land or structure transferred to a person subject to settlement in cash or a tenant, it is insufficient to authorize and public notice of a management and disposal plan to transfer it,

Comprehensively taking account of the details of the proviso of Article 49(6) of the former Act, the details and legislative intent of the amendment, and the structure and details of the relevant provisions of the former Act on the Maintenance of Urban Areas and the Land Compensation Act, etc., the project implementer falls under “compensation under the Land Compensation Act” as prescribed by the proviso of Article 49(6) of the former Act on the Compensation of Land, etc. for Relocation Expenses, Resettlement settlement funds, and director expenses (hereinafter “resident relocation expenses, etc.”) under Article 78 of the same Act. Therefore, in order for the project implementer to start the housing redevelopment project to receive land or buildings from a person subject to cash settlement or lessee, etc., it is necessary to pay housing relocation expenses, etc. determined in consultation or adjudication procedures, etc. to receive land or buildings within the rearrangement zone. It is difficult to view that the project implementer paid or deposited compensation, such as land obstacles, etc. determined by the expropriation decision as well as compensation under the Land Compensation Act.

Where a project implementer pays or deposits compensation following the adjudication of expropriation and requests the delivery of real estate pursuant to Article 43 of the Land Compensation Act, the project implementer may refuse to transfer the real estate on the grounds of non-payment of housing relocation expenses, etc. pursuant to the proviso to Article 49(6) of the former Act, barring any special circumstance, before a person subject to cash settlement or tenant, etc. receives compensation for relocation expenses, etc. In such cases, the said person shall not be punished for a violation of Article 43 or 95-2 of the Land Compensation Act on the ground that the person subject to cash settlement or tenant, etc. did not

2. Determination on the instant case

The lower court found the Defendant, who is a person subject to cash settlement, to be guilty of the charge of violating Article 43 and Article 95-2 subparag. 2 of the Land Compensation Act by deeming that the Defendant’s failure to deliver real estate subject to expropriation by the commencement date of expropriation constitutes a violation of Article 43 and Article 95-2 subparag. 2 of the same Act. However, the lower court did not examine whether the relocation cost, etc. was paid on the ground that it is difficult to constitute compensation covered by the principle of advance compensation. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of violating Article 43 and Article

3. Conclusion

The judgment of the court below is reversed without examining the remaining grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench