(영문) 대법원 2015.8.19.선고 2013두2358 판결

1. A. Article 24 of the Urban Development Act provides that "A project operator 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 Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Act")."

Article 78 (1) of the Public Works Act stipulates the contents of the measures for those who lose their base of livelihood due to the implementation of public works (hereinafter referred to as "persons subject to relocation measures") as the establishment and implementation of relocation measures or the payment of resettlement subsidies (hereinafter referred to as "establishment of relocation measures"), and delegates the subjects and contents to Presidential Decree. The Enforcement Decree of the Public Works Act excludes "the owner of a building who has not been continuously residing from the date of public notification, etc. under the relevant Acts and subordinate statutes for the public works to the date of conclusion of the contract or the date of the decision of expropriation" as the person subject to relocation measures.

B. Since the application of the Act on the Establishment, etc. of Relocation Measures, which is a mandatory provision, should be consistent, it is reasonable to interpret the statutory base date for relocation measures as one of the criteria for individual laws and regulations, and the policy needs to prevent speculative transactions following the implementation of public works under the Urban Development Act, the statutory base date for relocation measures, which falls under the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" in the urban development project, shall be the date of public announcement, etc. under the relevant Acts and subordinate statutes, Article 7 of the former Urban Development Act (amended by Presidential Decree No. 11690, Mar. 23, 2013); Article 11(2) and (1) of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 24443, Mar. 23, 2013) as one of the criteria for relocation measures. As such, it is reasonable to determine the scope of persons subject to relocation measures, such as those subject to relocation measures as stipulated in the Act.

However, in cases where a project implementer expands the scope of the implementation of measures for relocation, etc., the details thereof shall be divided into those concerning persons subject to measures for relocation as prescribed by the Act and those concerning other interested persons, and the establishment of measures for relocation, etc. for other interested persons shall be deemed mutually advantageous without any legal obligation. In addition, in cases where measures for relocation are established mutually implemented, the project implementer has extensive discretion as to how to determine the scope of those persons subject to measures for relocation (hereinafter referred to as "persons subject to measures for relocation") or the details of the establishment of measures for relocation, etc. thereof. Therefore, the criteria established by the Defendant for the measures for relocation shall be respected unless there are special circumstances that are objectively unreasonable, such as going against equity (see, e.g., Supreme Court Decisions 2013Du7520, Feb. 27, 2014; 2012Du2911, Jul. 23, 2015).

2. We examine the first ground for appeal.

A. On the grounds indicated in its reasoning, the lower court determined and publicly notified by the Seoul Special Metropolitan City Mayor on the basis of the provision that, when it is deemed necessary for the designating authority of an urban development zone to control speculation in accordance with the urban development business guidelines determined by the Minister of Construction and Transportation, a person may separately determine and publicly notify the base date for relocation measures (hereinafter referred to as “instant guidelines provision”) and the number of

The base date of the relocation measures stipulated in the plan for relocation of this case (hereinafter referred to as the "base date of the relocation measures of this case") was determined to the effect that it does not fall under the "date of public notice, etc. under the relevant Acts and subordinate statutes for public works" as stipulated in Article 40 subparagraph 3 subparagraph 2 of the Enforcement Decree of the Act on the Relocation Measures of Public Works.

B. Examining the reasoning of the lower judgment in light of the relevant statutes and the aforementioned legal principles as well as the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on “date of public notice, etc. under Article 40(3)2 of the Enforcement Decree of the Public Works Act” or the legal doctrine on the nature of the instant guidelines provisions, contrary to what is alleged in the grounds of appeal.

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) as a project implementer that implements the Gangseo-gu Seoul, D, E, F, G, and G urban development project (hereinafter “instant urban development project”) at 3,364,00 meters, announced the residents’ public inspection to designate the said area as a zone B urban development zone; (2) However, the Defendant announced the compensation plan on August 29, 2008 in accordance with the relevant Acts and subordinate statutes; and (3) as of December 23, 2008, the Defendant selected the relocation measures (hereinafter “instant relocation measures”) for the owners of the housing, etc. who lose their base of livelihood as the instant project; and (4) as seen earlier, it should be determined that the base date for the relocation measures of the instant case was before and after the date of the public announcement of the compensation plan; and (4) whether the residents acquired the housing in question before and after the date of the implementation of the housing plan and whether the housing in question were subject to voluntary relocation measures (the date of the housing in question).

B. However, the court below acknowledged 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 above compensation plan announcement, and then selected the person subject to the relocation measures of this case who acquired the housing in the project area of this case as of August 29, 2008, and among them, the person subject to the relocation measures of this case. (2) The above compensation plan announcement date of this case constitutes "the date of public notice, etc. under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act" as of the date of the above compensation plan announcement, and therefore, in order to determine the person subject to the relocation measures of this case as of December 30, 2005, the plaintiff did not accept the defendant's assertion that it failed to meet the requirements of the plan.

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 Public Works Act or subordinate statutes ought to be determined in accordance with Article 40(3)2 of the Enforcement Decree of the Public Works Act, based on the date of the public inspection and announcement.

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 said indemnity plan ( August 29, 2008), the person subject to the relocation measures of this case includes a person subject to the relocation measures of this case 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) and a person subject to the relocation measures of this case, but is not a person subject to the beneficial relocation measures

Since the Defendant’s broad discretion is recognized to determine the scope of persons subject to the relocation measures of this case or the establishment of the relocation measures for the Defendant, who is the implementer of the project, in establishing the relocation measures of this case, the Defendant’s specific date (the date of December 30, 2005), which is before the date of the public inspection of the relocation measures of this case, subject to the purchaser of the housing within the project area of this case after the date of the public inspection of the above compensation plan, and the date of the public announcement of the above compensation plan, barring any special circumstance, that even if the former household residing continuously in the relevant house and the date of the conclusion of the agreement or the date of the decision of expropriation are required to select only the owners who meet the requirements of “non-resident” in addition to the housing in the project area of this case, this should be respected, barring special

D. In light of the foregoing, the lower court erred in its determination to the effect that whether the Plaintiff constitutes a person subject to the measures for resettlement as prescribed by the Act regarding the measures for resettlement is not the date of the above public inspection announcement but the date of the above public inspection announcement. In addition, the lower court should have determined whether the Plaintiff constitutes a person subject to the measures for resettlement as prescribed by the Act under Article 40(3)2 of the Enforcement Decree of the Public Works Act based on the date of the above public inspection announcement, and should have determined whether the instant disposition, which excluded the Plaintiff from the persons subject to the measures for resettlement, deviates from and abused discretionary power, such as the violation of equity, should have determined whether the instant disposition was unlawful.

Nevertheless, as seen earlier, the lower court determined otherwise. In so doing, it erred by misapprehending the legal doctrine on the criteria for classification of persons subject to relocation measures under the Urban Development Act and the Public Works Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.