[1] The statutory base date for relocation measures falling under the “date of public notice under relevant Acts and subordinate statutes for public works” in an urban development project (=the date of public notice on the designation of an urban development zone) and whether the designation of a person as a person subject to relocation measures under Article 40(3) of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] Whether the operator of a public project may expand the persons subject to relocation measures and implement relocation measures to other interested parties, including those subject to legal relocation measures (affirmative)

[1] Article 24 of the Urban Development Act, Article 7 of the former Urban Development Act (Amended by Act No. 11690, Mar. 23, 2013); Article 11(1) and (2) of the former Enforcement Decree of the Urban Development Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 78(1) and (4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 24 of the Urban Development Act; Article 7 of the former Urban Development Act (Amended by Act No. 11690, Mar. 23, 2013); Article 11(1) and (2) of the former Enforcement Decree of the Urban Development Act (Amended by Presidential Decree No. 24443, Mar. 23, 2013); Article 28(3(4) of the former Enforcement Decree of the Act on Public Works

[1] [2] Supreme Court Decision 2012Du22911 Decided July 23, 2015 (Gong2015Ha, 1256) / [1] Supreme Court Decision 2007Du13340 Decided February 26, 2009 (Gong2009Sang, 381) / [2] Supreme Court Decision 2013Du7520 Decided February 27, 2014

See Attached List of Plaintiffs (Law Firm Han, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

E. E.S. (Attorney Jeong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu16284 decided November 2, 2012

The part of the lower judgment against Plaintiffs 12 and 19 is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals are dismissed. The costs of appeal against the Plaintiffs other than Plaintiffs 12 and 19 are assessed against the Defendant.

The grounds of appeal are examined.

1. A. Article 24 of the Urban Development Act provides that “A project operator shall establish and implement relocation measures, etc. 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 Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”).

Article 78(1) of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Decree of the Act on the Acquisition of and Compensation for Land, etc.”) provides that “A project operator shall establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood as a result of the implementation of a public project (hereinafter “person subject to relocation measures”), as prescribed by Presidential Decree, for the purpose of providing a residential building due to the implementation of the public project.” The details of the measures for a person subject to relocation measures shall be determined by the Presidential Decree as the establishment and implementation of relocation measures or the payment of resettlement funds (hereinafter “establishment of relocation measures, etc.”) and shall be delegated by the Presidential Decree. The Enforcement Decree of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Decree of the Act on the Acquisition of and Compensation for Public Works Projects”) provides that “the owner of a building who is not continuously residing from the date the public announcement, etc. under the relevant Act and subordinate statutes for the relevant building is made from the date of

B. However, in cases where the Act on the Expropriation of Land is planned to apply mutatis mutandis to the Land Expropriation Procedure in addition to the public announcement of project approval, the “date of public announcement, etc. under the relevant Acts and subordinate statutes for public projects” which serves as the basis for the relocation measures may include not only the date of public announcement of project approval but also the date of public announcement (see Supreme Court Decision 2007Du1340, Feb. 26, 2009, etc.).

However, the criteria for determining whether a person is a person subject to relocation measures under the laws and regulations should be individually specified in accordance with the relevant laws and regulations for each public project. Since the application of the public project laws and regulations for the establishment, etc. of relocation measures, which are mandatory provisions, must be consistent, it is reasonable to interpret them as one of the criteria for the statutory relocation measures under the individual laws and regulations. If a project operator can choose one of them in mind, it is not desirable to cause confusion by changing the criteria for each project, and to create a result contrary to equity.

Therefore, in addition to these circumstances, in full view of the procedures for the progress of public works under the Urban Development Act and the policy needs to prevent speculative transactions following the implementation of such projects, it is reasonable to deem that the legal 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 the designation of an urban development zone under Article 7 of the former Urban Development Act (amended by Act No. 11690, Mar. 23, 2013) and Article 11(2) and (1) of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 2443, Mar. 23, 2013) as the date of public announcement of the designation of an urban development zone under each provision of Article 40(3)2 of the Enforcement Decree of the Public Works Act. Based on

C. As can be seen, the Act and subordinate statutes specifically stipulate the scope of persons subject to relocation measures and the establishment of relocation measures to be implemented by the persons subject to relocation measures. As such, a project operator should not arbitrarily exclude those subject to relocation measures as stipulated by the Act from those subject to relocation measures as stipulated by the Act and subordinate statutes. However, the purport of the provision is not to limit those subject to relocation measures as stipulated by the Act, so the project operator does not limit those subject to relocation measures as required by the Act to those subject to relocation measures as stipulated by the Act. Therefore, the project operator can implement relocation measures by expanding the number of other interested parties, including those subject to relocation measures as stipulated by the Act, taking into account all the circumstances such as the nature of the relevant public project, specific circumstances and details, and the need for smooth implementation thereof (see Supreme Court Decision

However, in a case where a project implementer expands the scope of the implementation of relocation measures as above, the content is divided into those concerning a person subject to relocation measures as prescribed by the Act and those concerning other interested persons, and the establishment of relocation measures as to other interested persons ought to be deemed mutually advantageous without any legal obligation. In addition, in a case where the relocation measures are implemented mutually, the project implementer has broad discretion as to how to determine the scope of a person subject to relocation measures (hereinafter referred to as “person subject to timely relocation measures”) or how to establish relocation measures therefor. Therefore, barring any special circumstance to deem that the criteria established by the Defendant for relocation measures are objectively unreasonable, such as contrary to equity, the criteria established by the Defendant should be respected (see, e.g., Supreme Court Decisions 2013Du7520, Feb. 27, 2014; 2012Du22911, Feb. 27, 20

2. We examine the first ground for appeal.

A. The lower court determined to the effect that the former Urban Development Act and its Enforcement Decree, which were in force at the time, only stipulate matters concerning “the standards and methods for preparing development plans” and “the methods for calculating the number of consenters” and “the methods for calculating the number of consenters” are not prescribed by the Ordinance of the Ministry of Construction and Transportation but do not stipulate matters concerning the establishment and implementation of relocation measures in the Public Works Act and its Enforcement Decree, on the grounds that (1) the urban development business guidelines as determined by the Minister of Construction and Transportation set forth in the Ministry of Construction and Transportation provide that urban development project of the instant urban development project may separately announce the base date for relocation measures, and that the Seoul Special Metropolitan City Mayor, which was designated an urban development zone and announced by the Minister of Construction and Transportation with the approval of the development plan as the basis for the provision of the instant guidelines and the relocation measures (hereinafter referred to as “the date of this case’s relocation measures”) set by the Defendant as the base date for relocation measures set by the Ordinance of the Ministry of Construction and Transportation pursuant to Article 40(3) of the Enforcement Decree of the Public Works Act.

B. Examining the reasoning of the lower judgment in light of the relevant statutes and the aforementioned legal principles as seen earlier, and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the meaning of “the date of public notice, etc. under the relevant laws and regulations for public works” under Article 40(3)2 of the Enforcement Decree of the Public Works Act, or by misapprehending the legal doctrine on the nature of the instant guidelines provisions,

3. We examine the second ground for appeal.

A. According to the reasoning of the judgment below and the evidence duly admitted, (1) the Defendant: (a) announced the public inspection of the residents of the above area on December 29, 2006 as the project implementer implementing an urban development project (M&DC) with the total area of 3,364,00 square meters in Gangseo-gu, Seoul; (b) on December 23, 2008, the Defendant did not have the right to take relocation measures (hereinafter “the relocation measures of this case”); and (c) on December 29, 2008, the Defendant did not own the housing of this case before and after the conclusion of the agreement on the relocation measures of this case; and (d) on December 23, 2008, the Plaintiff did not have the right to take relocation measures (hereinafter “the relocation measures of this case”); and (d) the Defendant did not own the housing of this case to the housing owner before and after the conclusion of the agreement on the relocation measures of this case by December 30, 2005.

B. However, the court below held that (1) the Defendant did not determine the person subject to the relocation measures of this case as of December 30, 2005, which is the base date of the relocation measures of this case, but did not determine the person subject to the relocation measures of this case as of August 29, 2008, which is the date of the public notice of the above compensation plan, as of August 29, 2008, the person who acquired the housing within the project area of this case was selected as the person subject to the relocation measures of this case, and then the person subject to the relocation measures of this case was selected among them. (2) On the premise that the relocation measures of this case are determined as a person subject to the relocation measures of this case as of the date of public notice of the above compensation plan, the public notice of the designation of the urban development zone of this case falls under the "date of public notice, etc. under the relevant Acts and subordinate statutes for public works" and thus, rejected the Defendant'

C. However, in light of the legal principles as seen earlier, it is reasonable to determine the above facts as follows.

Since the date on which the Defendant announced the public inspection of residents to designate an urban development zone on the instant project on December 29, 2006, whether the project constitutes a person subject to the relocation measures prescribed by the Urban Development Act and the Act and subordinate statutes, the determination of whether the project constitutes a person subject to relocation measures should be made pursuant to Article 40(3)2 of the Enforcement Decree of the Public Works Act based on

However, according to the Defendant’s selection of a person subject to the relocation measures of this case as of the date of the public notice of the above indemnity plan ( August 29, 2008), the person subject to the relocation measures of this case is not a person subject to the relocation measures as stipulated by the law, which is recognized as of the date of public notice of the above public inspection (the date of December 29, 2006) but is not a person subject to the relocation measures of this case, but a person subject to the mutually beneficial relocation measures

With respect to those subject to the relocation measures of this case, a broad discretion is recognized for the Defendant, who is the project executor, to determine the scope of those subject to the relocation measures of this case or the contents of the establishment of the relocation measures. Therefore, the Defendant established the criteria for selecting only the owners who acquired housing within the project area after the voluntary date prior to the date of the public inspection of the relocation measures of this case and who meet the requirements of ownership and residence as of the date of the public announcement of the above compensation plan, and who did not meet the above additional requirements, excluded those who failed to meet the above additional requirements from those subject to the relocation measures of this case from the above ones subject to the relocation measures of this case, such criteria are related to the establishment of the beneficial relocation measures of this case and whose wide discretion is recognized for the Defendant. Thus, barring special circumstances, it should be respected that the criteria are objectively unreasonable

(1) Thus, the court below erred in finding that the issue of whether the person is a person subject to the measures for resettlement as prescribed by the Act is not the date of the above public inspection announcement, but the date of the above public inspection announcement. (2) The court below should have determined the illegality of each of the dispositions of this case by examining whether the above plaintiffs 12 and 19 constitute the person subject to the measures for resettlement as prescribed by the Act because they fall under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act based on the date of the above public inspection announcement.

D. Nevertheless, the lower court determined otherwise on the grounds indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for the classification of persons subject to relocation measures under the Urban Development Act and the Public Works Act, thereby failing to exhaust all necessary deliberations.

4. We examine the third ground for appeal.

As long as Plaintiffs 13, 14, 15, 16, and 18 are deemed to be included in the subject of relocation measures, etc. based on the date of the public notice of the above compensation plan, the lower court rejected the Defendant’s assertion that each of the dispositions of this case by the Defendant, excluding the above Plaintiffs from the subject of the establishment, etc. of relocation measures, was unlawful on the ground that the above Plaintiffs were separated from households for the purpose of sale, etc.

Examining the reasoning of the judgment below in light of the relevant legal principles and the evidence duly admitted, the above plaintiffs constitute persons subject to relocation measures under the Urban Development Act and the Public Works Act by satisfying all the requirements for ownership and residence as of the date of public inspection announcement, and thus, each of the dispositions of this case excluding the above plaintiffs is unlawful since they were arbitrarily excluded from those subject to relocation measures under the Act and subordinate statutes, and the aforementioned circumstances cited by the defendant can be considered in the process of determining persons subject to relocation measures among those subject to relocation measures, and persons subject to relocation measures, and persons subject to relocation measures to be paid resettlement funds. Therefore, the conclusion is justifiable, although the court below

Therefore, the lower court did not err in its judgment by misapprehending the legal doctrine on the presence of a project implementer’s discretion in the relocation measures or the deviation and abuse of discretionary power, as otherwise alleged in the grounds of appeal.

5. Therefore, the part of the lower judgment against Plaintiffs 12 and 19 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. All of the Defendant’s remaining appeals are dismissed. The costs of appeal against the Plaintiffs other than Plaintiffs 12 and 19 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Kim Yong-deok (Presiding Justice)