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

The head of Gangseo-gu Seoul Metropolitan Government

August 29, 2008

1. The defendant's disposition of excluding those subject to special supply of national housing against the plaintiff on November 14, 2007 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is the owner of the 66.12 square meters of the 1st floor of the 1st floor and the 66.12 square meters of the 1st floor neighborhood living facilities in the Gangseo-gu Seoul Metropolitan Government (number omitted), and the location of the instant building was included as the site for the construction of the public sewerage line, depending on the modification of urban planning facilities (cultural facilities) under the Seoul Metropolitan Government Notice No. 2007-77 on March 29, 2007.

B. On June 7, 2007, the implementation plan was amended by the Gangseo-gu Seoul Metropolitan Government Notice No. 2007-36 on June 7, 2007, and accordingly, the Defendant notified the Plaintiff of the perusal of the plan for compensation for losses.

C. On November 2, 2007, the Plaintiff requested the Defendant to use the instant building for a residential purpose, and supply of national housing. However, the Defendant, on November 14, 2007, pursuant to Article 5(1)2 of the National Housing Special Supply Rules for the Removal Residents, etc. of Seoul Special Metropolitan City, the building to be removed meets the requirements for special supply in cases where the building to be a residential purpose is a house registered on the building management ledger. The instant building was sent to the effect that the main purpose of the building management ledger is a neighborhood living facility, and thus does not constitute a subject of special supply (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 to 5 evidence, Eul 1 and 2 evidence (including above number)

2. Determination on the legitimacy of the disposition

A. The plaintiff's assertion

The Plaintiff had been living together with his family in addition to the restaurant operated on the instant building. Therefore, even if the main purpose of the instant building was a neighborhood living facility, the instant building constitutes a residential building under Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), and thus, the instant disposition is unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

(c) Fact of recognition;

1) On January 7, 1972, the instant building was newly constructed for the original purpose of housing and used for that purpose. On March 26, 2001, without any change in any structure, only the purpose of the building is changed to a neighborhood living facility and its main purpose is a neighborhood living facility.

2) The Plaintiff is running a restaurant in the instant building with his family from September 28, 1998 to around the day when the implementation plan was revised. From March 26, 2001, the Plaintiff is running the restaurant along with his family.

3) However, the Plaintiff, on August 2006, is running a restaurant while residing in the building of this case, after having been returned around October 2007, by leaving the Nonparty, who is a relative to the operation of the restaurant, inevitably leaving the restaurant to the Nonparty, who is a relative to the Plaintiff. The Plaintiff provided medical care in the ancientbuk-do, Chungcheongnambuk-do, and returned again on and around October 2007.

[Reasons for Recognition] Each of the evidence, Gap's evidence, Gap's evidence (including the above number), the video, and the purport of the whole pleading

D. Determination

Article 78 of the Public Works Act and Article 40 of the Enforcement Decree of the Public Works Act provide that the operator of a public project shall establish and implement relocation measures such as creation and supply of a housing site to migrants who lose their base of living due to the implementation of the project. Article 40(3) of the Enforcement Decree of the Public Works Act provides that ① the owner of a building without permission or without report (the owner of a building without permission or report as of January 24, 1989 as of January 24, 1989 as of January 24, 1989 shall be included in relocation measures), ② the person who does not reside in the building in question, ③ the tenant shall be excluded from relocation measures, without providing detailed provisions on the details of the relocation measures under the Public Works Act and the Public Works Act. The relocation measures under the above Act are established for the migrants who lose their base of living due to the provision of the land necessary for the public project, etc., with the cost of the relocation of the housing site or the cost of the relocation at the expense of the residents.

Article 19(1)3(c) of the Regulations on Housing Supply, which was enacted upon delegation by the Housing Act, provides that the State may specially supply national housing, etc. to the “owner of a house removed from an urban planning project.” Meanwhile, the proviso of Article 40(2) of the Enforcement Decree of the Public Works Act provides that “If a project operator supplies a housing site or house to a person subject to relocation measures under the relevant Acts and subordinate statutes, such as the Housing Site Development Promotion Act or the Housing Act (including the case of supplying a housing site or house by intermediation of a project operator), the said special supply of national housing, etc. is deemed as a substitute for the relocation measures as prescribed by Article 78(1) of the Public Works Act (Supreme Court Decision 2006Du8495 Decided November 29, 2007).”

According to the above legal principles, it is not permissible to set a difference in relation to the special supply of national housing, etc. on the basis of only the form of the main use column on the building management ledger. Therefore, a disposition rejecting a request for special allotment of national housing is illegal because the owner of a residential building is not registered as a residential person in the building management ledger merely because it is not registered in the building management ledger

Meanwhile, Article 5 (1) 2 (b) of the Special Supply Rule of Seoul Special Metropolitan City, which embodys the regulations on housing supply, provides that "a building to be removed is a house registered as a residence in the building management ledger or a building without permission under subparagraph 1 of Article 2 of the Seoul Special Metropolitan City Ordinance on Urban Redevelopment Project, which is confirmed as the main purpose of residence, as a result of the investigation of the joint situation conducted by the head of the competent Dong and the director in charge of the competent Gu office as a result of the joint situation conducted by the head of the competent Dong and the director of the competent Gu office," as a special supply requirement. However, the above special supply rule of Seoul Special Metropolitan City, by exercising the discretionary power granted by the administrative agency under the Housing Act and the Housing Supply Rules, is an internal administrative rule of Seoul Special Metropolitan City, and cannot be deemed as an externally binding effect on the people or the court (see Supreme Court Decision 2006Du

However, according to the above facts, although the use of the building in the building management ledger is a neighborhood living facility, the plaintiff and his family have resided in the building of this case since around 1998 and had been engaged in living together with business activities. However, since the building of this case had resided temporarily in another place due to the plaintiff's health deterioration from around August 2006 to October 2007, it is merely a temporary residing in another place. Thus, the building of this case is obvious that it constitutes a residential building regardless of the use column on the building management ledger, but it is not registered as a residential building on the building management ledger, and thus, the disposition rejecting the plaintiff's application for the grant of the special right to purchase national housing is unlawful as it goes beyond the scope of discretionary power.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is justified and acceptable.

Judges Kim Jong-soo (Presiding Justice) and Kim Jong-hee