(영문) 부산고등법원 2018.7.27.선고 2018누20702 판결

The judgment of the first instance is revoked. The part of the notification of the selection of the person subject to relocation measures by the Defendant on August 16, 2017, which was “the price calculated by subtracting the cost of construction of basic living facilities from the appraised price.”

Reasons

1. Quotation of the first instance judgment

The reasoning of this court’s judgment is as follows: (a) added a judgment on the Defendant’s new argument as stated in paragraph (2); and (b) 17 to 5 to 10 pages of the judgment of the court of first instance are as stated in paragraph (3) above; and (c) citing the reasoning of the judgment of the court of first instance as stated in Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination as to whether an administrative disposition is the subject of an appeal litigation

A. The defendant's assertion

The administrative disposition subject to appeal litigation refers to the act that is directly related to the rights and obligations of the people. The defendant's notification to the plaintiffs on the selection of the person subject to the relocation measures and the supply price of the resettled housing site is merely the prior notification to the residents, and it is difficult to view it as an act that is directly related to the rights and obligations of the

B. Determination

A decision of confirmation of a person subject to relocation measures to be implemented by a public project operator under the Land Compensation Act shall be an administrative action that is a requirement for granting the right to purchase a parcel of land under specific relocation measures, and it shall not be deemed that it is merely an act of fact in accordance with the required procedural requirements. Therefore, if a person who wishes to acquire the right to purchase a parcel of land applies for the selection of a person subject to relocation measures in accordance with the prescribed procedures and the project operator excludes or rejects the application without the aforementioned decision of confirmation, etc., he/she may seek a revocation of the disposition of exclusion or rejection by an appeal litigation against the project operator. Furthermore, in cases where the types of relocation measures vary depending on the different contents of the measures are different, if the project operator did not select a person subject to relocation measures for reasons of falling short of the requirements, etc., notwithstanding the desire of the migrants, this shall also be an act of direct change in the rights and obligations of the migrants, and thus, it shall be subject to an appeal litigation (see, e.g.

The defendant is a process of establishing and implementing relocation measures as prescribed by the Land Compensation Act and notified the plaintiffs of the selection of a person subject to relocation measures as above, which constitutes a disposition subject to appeal litigation.

Therefore, the defendant's above argument is without merit.

3. As seen in the relevant Acts and subordinate statutes, an urban development project implementer shall establish and implement relocation measures for those who lose their base of livelihood due to the provision of land, etc. necessary for the implementation of an urban development project as prescribed by the Land Compensation Act (Article 24 of the Urban Development Act). According to the Land Compensation Act, a project implementer shall establish relocation measures or pay resettlement funds to those who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works as prescribed by Presidential Decree (Article 78(1) of the Land Compensation Act). According to the Enforcement Decree of the Land Compensation Act delegated by the said Act, if a project implementer supplies housing sites or houses to those subject to relocation measures (proviso to Article 40(2) of the Enforcement Decree of the Land Compensation Act). On the other hand, the details of relocation measures shall include road supply facilities, drainage facilities and other basic living facilities at an ordinary level, such as public facilities, etc. for resettlement settlement, and expenses incurred therein shall be borne by the implementer at the time of the project (the main sentence of Article 78(4) of the Land Compensation Act).

As such, comprehensively taking account of the provisions under the proviso of Article 40(2) of the Enforcement Decree of the Land Compensation Act, the project implementer may supply housing sites or houses to those subject to relocation measures (hereinafter “special supply”) pursuant to the relevant statutes, such as the Housing Site Development Promotion Act and the Housing Act. As such, as in the case of special supply, the project implementer may choose based on delegation under Article 78(1) of the Land Compensation Act, it is necessary to install basic living facilities as stipulated under Article 78(4) of the same Act at the cost of the project implementer and provide them to those subject to relocation measures: Provided, That the provision of housing to those subject to relocation measures at the cost of the project implementer pursuant to Article 78(4) of the Land Compensation Act is limited to basic living facilities as stipulated under the same Article; thus, if the project implementer provides housing sites or houses as relocation measures or specially supplies housing to those subject to relocation measures, it is not deemed that the housing site or the housing site construction cost can be imposed on those subject to relocation measures (see Supreme Court en banc Decision 2007Da630896, Jun. 23, 2011).

Therefore, the plaintiffs' assertion is without merit.

4. Conclusion

Therefore, the judgment of the first instance is justifiable, and the plaintiffs' appeal is dismissed.