2015Da59047 Return of Fraudulent Gains

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

9. I

10. J

11, K

12. L.

13. M;

8. H;

Es. Es.S.P

Seoul High Court Decision 2013Na48090 Decided September 11, 2015

May 12, 2016

The part of the lower judgment against the Defendant against Plaintiff L is reversed, and that part of the case is remanded to the Seoul High Court.

Plaintiff H’s appeal and Defendant’s appeal against Plaintiff A, B, C, D, E, F, G, I, J, K, and M are all dismissed.

Of the costs of appeal, the costs of appeal between Plaintiff H and the Defendant are assessed against the Defendant respectively. The costs of appeal between Plaintiff HO, Plaintiff A, C, D, E, E, F, G, I, J, K, and M are assessed against the Defendant.

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

1. As to Plaintiff H’s ground of appeal

For reasons indicated in its reasoning, the lower court determined that the Plaintiff H’s father cannot be deemed as a person subject to the relocation measures stipulated in the former Public Works Act, etc., on the ground that it is insufficient to deem that the Plaintiff H owned the relevant unauthorized building as of January 15, 2004, which was the date when the relocation measures for the instant project was implemented, and there is no other evidence to acknowledge otherwise.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations and exceeding the bounds of

2. As to the Defendant’s ground of appeal

A. Regarding ground of appeal No. 1

(1) 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"), for the purpose of providing residential buildings due to the implementation of an urban development project, a project operator is not obliged to establish and implement relocation measures as prescribed by the Enforcement Decree of the former Public Works Act, or the owner of a building who fails to comprehensively take such measures from the date of "the relocation measures" to the date of expropriation of the building.

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. 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 (hereinafter referred to as "basic living facilities"), such as roads, water supply facilities, drainage facilities, and other public facilities, in a resettlement area (including a housing complex constructed by the implementation of relocation measures), and directly provides that the project operator shall bear the expenses incurred therein."

In full view of the structure and purport of the relevant laws and regulations, as well as the policy needs to prevent speculative transactions following the implementation of public works under the Urban Development Act, it is reasonable to view 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 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, which is the content of the relocation measures only for the person subject to relocation measures under such Act, and that the provision should not be applied to the person subject to relocation measures (see, etc.

On the other hand, Article 1 of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 8786 of Dec. 21, 2007; hereinafter referred to as the "Urban Renewal Act") provides that "the purpose of this Act is to promote balanced urban development and to 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." Article 2 subparagraph 2 of the Act lists "urban development projects 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 relevant Acts with respect 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 procedures for the designation and public notice of urban renewal acceleration districts or the designation and public notice of urban renewal acceleration districts under this Act, which are similar to the designation and public notice of urban renewal acceleration districts."

As such, setting up a Special Provision on the existing project district in the Addenda of the Urban Renewal Act is to ensure the continuity of the project already underway and keep the project more efficient by ensuring the continuity of the project, while avoiding the repetition of the dance procedure, if the project continues to be conducted by applying the Urban Development Act to the urban development project, which has gone through procedural guarantee, such as the public inspection of residents, in accordance with the relevant Acts and subordinate statutes, such as the Urban Development Act.

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

(2) According to the reasoning of the lower judgment, the lower court determined that the Plaintiff L constitutes a person subject to relocation measures as of October 18, 2007, on the ground that the Plaintiff L, who resided in the instant reservation area, was included in the instant project district only under X of the Seoul Special Metropolitan City Public Notice No. 10, 18, 2007, on the ground that the portion equivalent to W 152,813.6 square meters among the V districts of an urban development project in the Eunpyeong-gu Seoul Metropolitan Government NO, P 3,495,248 meters (hereinafter “instant project”) was a person subject to relocation measures under Article 78(1) of the former Public Works Act.

(3) However, we cannot accept the judgment of the court below for the following reasons.

(A) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① A public notice was made on January 15, 2004 to designate the said R district as an urban development zone. Around February 25, 2004, the instant reservation district was included in Q Q as an urban development zone on February 25, 2004, but only specific development purposes on the land utilization plan have not been determined.

② On October 19, 2006, the R urban development zone was designated as the R urban renewal acceleration district in accordance with the designation of the AI urban renewal acceleration district and the determination of the urban renewal acceleration plan, and the specific land use plan of the instant reservation district became final and conclusive thereafter, the urban renewal acceleration plan was modified according to X of the Seoul Special Metropolitan City Public Notice of October 18, 2007, with the content of reducing the area of the instant reservation from 152,790m2 to 002.

③ The Plaintiff L acquired the building belonging to the instant reservation place, and had been residing from September 28, 2006.

(B) According to the aforementioned legal principles, whether a person is a person subject to relocation measures under the Act on Public Works in an urban development project to which Article 78(4) of the former Public Works Act applies shall be determined based on the date of public inspection and announcement as to the designation of an urban development zone. The same applies to an area included in the previous urban development zone where an existing urban development zone is recognized and designated and publicly announced as an urban renewal acceleration district pursuant to

Furthermore, it is difficult to see that the above W was designated as a reservation site in the urban development zone merely because it was excluded from the project zone. In the case of a reservation site for which specific purposes of development 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 view the base date for relocation measures regarding the instant reservation site included in the previous urban development zone as the date of the public inspection announcement as of January 15, 2004, as in the remaining project zones.

(C) Examining the above circumstances in light of the aforementioned legal principles, the Plaintiff L who resided in the relevant building only after January 15, 2004, which is the legal base date for relocation measures, cannot be deemed as a person subject to relocation measures under the former Public Works Act, etc.

Nevertheless, the lower court determined otherwise solely on the grounds indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the criteria for classifying persons subject to relocation measures as stipulated by the former Public Works Act and the subject of application of Article 78(4) of the former Public Works Act, thereby failing to exhaust all necessary deliberations. The Defendant’s ground of appeal assigning

B. Regarding ground of appeal No. 2

For reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the Defendant should calculate the cost of basic living facilities based on the area obtained without compensation from the State or a local government which deducts a square meter of 252,524 meters. In light of relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff H is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's appeal against the plaintiff H and all appeals against the plaintiff A, B, C, D, D, E, F, G, I, J, K, and M are dismissed. The costs of appeal against the plaintiff H and the defendant among the costs of appeal are assessed against the plaintiff A, B, D, E, F, G, I, K, K, and the costs of appeal against the plaintiff A, C, D, F, G, K, K, and the defendant are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Park Sang-ok

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee