Plaintiff 1 and three others (Attorneys Cho Jong-man et al., Counsel for the plaintiff-appellee)

The head of Eunpyeong-gu Seoul Metropolitan Government (Attorney Seo-sik, Counsel for the defendant-appellant)

Seoul Special Metropolitan City Mayor

March 31, 2006

Seoul Administrative Court Decision 2005Guhap7525 decided July 6, 2005

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's rejection disposition against the plaintiffs on February 25, 2005 against the application for special supply of national housing is revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and all plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The judgment of the court of first instance on the background of the disposition and the main safety objection among the grounds to be stated in this judgment is identical to the description on the background of the disposition of 1. and the main safety objection in the column of the reasoning of the judgment of the court of first instance, and thus, it is cited by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Even in the case of the instant house, it is physically divided so that two or more households can live in the building from the stage of design and construction, and if one can carry on an independent residential life in each household unit because each household unit has a room and living facilities, it is different from that of a multi-household house in substance. Therefore, in a case where the said house is provided for the implementation of a public project, the special right to sell the national housing provided as part of the relocation measures should be granted to each individual in accordance with the relevant statutes.

B. Relevant statutes

The entries in the attached statutes are as follows.

(c) Fact of recognition;

(1) On November 4, 1989, Nonparty 1 and Nonparty 2 newly built the instant house. At the time of the new construction, all of the household units, including the 2nd household, the 1st floor household, the 2nd floor household, and the 2nd floor household on the ground, were designed and constructed so that all of the 6 households can independently carry out their residence. Nonparty 1 and 2 sold the instant real estate to Nonparty 3 and the 3, etc., respectively, and the registration was completed in the form of the ownership transfer registration for the shares. Moreover, various taxes and public charges were imposed for each household.

(2) On January 24, 1990, Plaintiff 3 purchased or donated Nos. 102 on the ground among the instant housing, Plaintiff 1, November 1, 1994, Plaintiff 2, Plaintiff 2, and Plaintiff 4, on July 6, 1996, respectively, and completed a share registration on September 11, 1999, and independently reside at the time when the implementation plan for the instant urban planning project was approved.

[Reasons for Recognition] No. 6-1, 2, 7, 9, 10-1 through 34, 11-1 through 34, 12-1 through 6, 14-1 through 4, 14-1 through 15-1, 15-2, and 2, respectively, and the purport of the whole pleadings.

D. Determination

(1) Relocation Measures System

Article 78(1) of the Public Works Act provides that “A project operator shall either establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood due to the implementation of public works (hereinafter referred to as “person subject to relocation measures”), as prescribed by Presidential Decree, for the person who is deprived of his/her base of livelihood due to the implementation of the public works project.” Accordingly, Article 40(2) of the Enforcement Decree of the said Act provides that “The relocation measures shall be established and implemented in cases where the person who wishes to move to the resettlement area among those subject to relocation measures is at least 10 persons, except in extenuating circumstances prescribed by the Ordinance of the Ministry of Construction and Transportation.” Provided, That where a project operator supplies a housing site or a house

Such relocation measures are a system that provides land, etc. necessary for the implementation of public works so that the project implementer may lose the basis of livelihood by providing land, etc., and individually provides migrants with a housing site including basic living facilities or construction of housing on the ground and only the cost of its input. The original purpose of the plan is to restore the previous living conditions of migrants to the original state and at the same time restore them to the original state, and as part of the so-called "living compensation" to guarantee their living worthy of human dignity (see Supreme Court Decision 2001Da5778, Jul. 25, 2003). In other words, the implementation of the plan as part of living compensation for restoring the previous living conditions to migrants rather than being included in legitimate compensation is within the area of legislative and policy discretion of the legislator (see Constitutional Court Decision 2004Hun-Ma194, Feb. 23, 2006; Supreme Court Decision 2004Hun-Ma1362, Feb. 13, 2006).

(2) Persons subject to relocation measures

Article 8(1) of the former Special Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 6656 of Feb. 4, 2002) provides that the project implementer shall establish and implement relocation measures for those who lose their base of livelihood due to the submission of land, etc. necessary for the implementation of the public project. As such, the project implementer’s discretion has been recognized regarding the specific selection of those subject to relocation measures, details of relocation measures, etc. (see Supreme Court Decisions 94Nu1279, Oct. 12, 1995; 94Nu11279, Oct. 12, 195). However, Article 78(1) of the current Public Works Act provides that the project implementer must establish and implement relocation measures or pay resettlement funds for those subject to relocation measures, and that the project implementer shall reduce the project implementer’s discretion to establish and implement relocation measures by significantly improving the detailed contents of Article 8(2) through (7) of the same Act.

In detail, the subjects of relocation measures are those who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works.The Public Works Act does not list those subject to relocation measures specifically, but the Enforcement Decree of the Public Works Act excludes unauthorized housing owners, unregistered housing owners, and tenants from those subject to relocation measures (Article 40(3)). Therefore, in principle, those who provide residential buildings should be considered as those subject to relocation measures.

On the other hand, the Public Works Act does not have a separate provision on the form of ownership of a residential building in determining a person subject to relocation measures. In the case of a single-household detached house, the owner thereof in the case of a multi-family house, and each sectional owner of that multi-family house in the case of a multi-family house, the physical structure of which is independent, thereby enabling each owner to carry on his own residential life.

First of all, the introduction of the concept of detached houses, apartment houses, and apartment houses under the Housing Act to determine the number of persons subject to measures for resettlement is helpful to prompt and efficient progress of public works. However, the Housing Act aims at improving the housing level, and the Building Act aims to contribute to promoting public welfare by improving the function, environment, and aesthetic view of buildings by prescribing the standards, purposes, etc. of structures and equipment of buildings. Accordingly, the Act on Public Works provides for compensation for losses arising from the acquisition by consultation or expropriation of land, etc., thereby contributing to the promotion of public welfare and the appropriate protection of property rights through efficient implementation of public works. In other words, the Housing Act and the Building Act focus on formal elements such as the structure, function, and aesthetic view of buildings. While the Housing Act and the Building Act focus on the structure, function, and aesthetic view of the buildings, the Act on Public Works Projects (Article 34(1) of the Constitution) provides for substantial factors such as property rights and the right to enjoy human life (Article 34(1) of the Housing Act). In particular, the Act on Public Works Projects provides property rights equivalent to the previous residential environment.

In this case, ① the expropriation of a residential building under the Public Works Act is conducted without relation to the owner’s consent, ② the purpose of the relocation measures system is to enable the owner of a multi-family house to enjoy at least the residential life corresponding to the previous residential environment against his/her will against the person who is deprived of his/her base of living, focusing on the aspect of the citizen’s livelihood security. ③ In the case of a multi-family house, a house which can carry on an independent residential life due to the division of physical structure from among multi-family houses, does not have a big difference from the apartment house in its substance, ④ in addition, the Public Works Act does not have special restrictions on the ownership form of a residential building of a person subject to relocation measures, and ⑤ in the case of a multi-family house, the owner of a multi-family house shall be deemed to be included in the owner of a multi-family house who actually has independent residential

(3) Special allotment of national housing

Even if a person subject to relocation measures is a person subject to special ownership of national housing (hereinafter referred to as “special ownership”) is not necessarily required to grant the person a special ownership of national housing to him/her. In other words, there is no right that a person subject to relocation measures has the right to demand a special ownership of national housing at the relocation stage (Article 78(1) of the Public Works Act). A person may establish and implement other relocation measures or pay resettlement funds (Article 78(1) of the Public Works Act). However, if the relocation measures have been formulated once, the person subject to relocation measures can be specially supplied housing sites, apartments, etc. according to the contents thereof

In this case, the Defendant did not prepare a separate plan for relocation in addition to granting a special right to purchase land to the building provider except the Plaintiffs, and there seems to be no intention to prepare other plan for relocation to the Plaintiffs. Also, the Defendant’s assertion also purports that the Plaintiffs may be granted a representative or a special right to purchase land under the name of the co-owner of the instant housing, but may not be granted to each party. Therefore, the relocation measures related to the instant urban planning project may be deemed as only granting a special right

However, as seen earlier, the plaintiffs are subject to measures for relocation of each individual. Therefore, the defendant should grant the special right to purchase land provided as measures for relocation to each individual of the plaintiffs.

(4) Rules on Housing Supply

Article 5(4) of the Seoul Special Metropolitan City Supply Directive (hereinafter “Supply Directive”) prescribed by the Seoul Special Metropolitan City Ordinance pursuant to Article 19(1)3 of the Rules on Housing Supply (hereinafter “Supply Rules”) provides that “If several persons jointly own one building demolished due to a project or disaster, one representative designated by the joint owners or one joint owner may specially supply national housing, etc.” Meanwhile, Article 5(2)2 of the Supply Directive provides that a person who newly acquires a multi-family house after changing a multi-household house to a multi-household house shall be excluded from a subject of supply. The purport of each provision is that a multi-family house is a multi-household house and is a multi-household house, the defendant should specially supply a national housing under the joint name of its representative or co-owners, and otherwise, it does not comply with the principle of equity with the owners of other multi-family houses.

However, the above supply guidelines only stipulate the internal standards and procedures of the Seoul Special Metropolitan City (including autonomous Gus) for the special supply of national housing and does not externally bind the citizens or courts. ② Furthermore, even based on the interpretation of the above supply guidelines, the special supply of national housing to each co-owner of multi-family housing is recognized. Article 19(1)3 of the supply rules only provides for the special supply of national housing to each co-owner of multi-family housing which is removed by urban planning projects. The supply guidelines also stipulate that a single building is jointly owned by several persons. The term “one building” means a single multi-household house that can not be independently built. If a multi-household house independent of this case is included in the above “one building”, this is because it is reasonable to regard the owner of the building as a multi-household house as a new multi-household house after changing the ownership of the multi-household house to the new multi-household house (multi-household house) under Article 19(1)3 of the supply regulations for residential stability of the owner of the building.

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

(5) Sub-committee

The instant housing has been registered as a single building, but its actual status is divided into six independent housing in terms of its structure or use. Moreover, the Plaintiffs publicly announce the ownership of each owned part in the form of share registration and have the right to actually dispose of it. In such a case, the Plaintiffs are subject to the measures for relocation of each person, and are entitled to the special right to supply prepared by the Defendant as the measures for relocation.

3. Conclusion

Therefore, the plaintiffs' claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified on the grounds of its conclusion. Accordingly, the defendant's appeal is dismissed and it is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)