[1] The case holding that a project operator's refusal to file an application for special allotment of national housing based on Article 78 (1) of the Act on Acquisition of Land, etc. for Public Works and the Compensation Therefor

[2] Criteria for determining "residential buildings" subject to relocation measures under Article 78 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor

[3] The legal nature of the regulations on the special supply of national housing to the removal residents of Seoul Special Metropolitan City, which is a provision for the special supply of national housing

[1] The case holding that where a project implementer establishes relocation measures under Article 78 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor against a person who provided a house, etc. for the implementation of an urban planning project, such relocation measures shall be deemed to give legal benefits to a person who cooperates in the urban planning project concerned to demand special supply of national housing, and thus, a project implementer's refusal of a special purchase of national housing based on the above provisions constitutes an administrative disposition subject to administrative litigation even if it is based on the civil petition form.

[2] The legislative purport of Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor is to carry out measures for the relocation of at least persons who are deprived of their base of living due to the provision of land, etc. necessary for the implementation of public works. In light of such legislative purport, unless otherwise provided in the laws and regulations related to relocation measures, the objects of socially independent ownership can be recognized regardless of the form of registration, and if a building which is able to carry on an independent residential life has been provided for the implementation of public works, there should be measures for the relocation of the building individually being supplied with independent residential facilities to the provider.

[3] The Rules on Special Supply of National Housing to the Residents of the Seoul Metropolitan Government, etc. are merely the administrative guidelines that provide the internal standards and procedures of the Seoul Metropolitan Government (including the autonomous Gu) with regard to the special supply of national housing, and it does not externally bind the people or the court.

[1] Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Article 19(1)3(c) of the Rules on the Supply of Housing, Article 2 of the Administrative Litigation Act / [2] Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor / [3] Article 19(1)3 of the Rules on the Supply of Housing, Article 5(1) and (4) of the

Han-soo et al. (Attorneys Cho Jong-man et al., Counsel for the plaintiff-appellant)

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

Seoul Special Metropolitan City Mayor

June 29, 2005

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

2. Of the costs of lawsuit, the part relating to the participation in the intervenor joining the defendant and the remainder shall be borne by the defendant respectively.

The same shall apply to the order.

1. Details of the disposition;

A. With respect to the housing of 1st floor, 96.34 square meters, 2nd floor, 96.34 square meters, 47.50 square meters, and 48.17/240 and the Plaintiff’s migration year owns 23.75/18 shares, respectively, in relation to the housing of 2nd floor in Eunpyeong-gu, Eunpyeong-gu, Seoul, Seoul, a green dong-dong 78-3 ground bricks; and

B. On August 30, 2004, the Defendant publicly announced an implementation plan for an urban planning project (public office buildings, hereinafter referred to as “instant urban planning project”) that constructs a separate hall of the Gu office in the green-dong 78-3 unit, Eunpyeong-gu, Seoul, including the instant housing under the Eunpyeong-gu Notice No. 2004-89.

C. From February 2, 2005 to March 2005, the Defendant individually notified the owners of housing other than the Plaintiffs removed due to the instant urban planning project to file an application for special supply of national housing in accordance with Article 19(1)3 of the Rules on the Acquisition of Land, etc. for Public Works and the Compensation Therefor and Article 78(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “Act on the Acquisition of Land, etc.”) and the Rules on Special Supply of National Housing to the Residents removed from Seoul Special Metropolitan City (hereinafter “Seoul Special Rules on Supply”).

D. Around February 2005, the Plaintiffs submitted to the Defendant a written application to the effect that, although the instant housing was registered as joint ownership by the Plaintiffs and three other parties, its substance is not different from the multi-household housing, since it is in a sectionally owned co-ownership relationship that actually owns a specific part of each specific part, the Plaintiffs granted the special right to sell national housing to each of the Plaintiffs.

E. On February 25, 2005, the defendant delivered to the plaintiffs a special supply of national housing to the owners of the housing demolished by the instant urban planning project in accordance with the Seoul Special Metropolitan City Supply Rules. However, according to Article 5(4) of the Seoul Special Metropolitan City Supply Rules, where many people jointly own a detached house, one representative designated by the joint owners or one joint owner may specially supply a national housing. The plaintiffs sent a reply to the purport that the plaintiffs, who are joint owners of a detached house, should not be granted a special right to purchase national housing because they fall under the case of a joint ownership of a detached house, not a specific house, but a case of a joint ownership of a detached house (hereinafter referred to as the "disposition in this case").

[Reasons for Recognition] Evidence No. 1, Evidence No. 2, Evidence No. 6-1, Evidence No. 1, Evidence No. 9-1 through 3, and the purport of the whole pleadings.

2. Defenses to present the safety;

The defendant asserts that the disposition of this case is a civil petitioner's opinion on the civil petition and is not an administrative disposition which is the object of an appeal litigation, since it is confirmed after the commencement date of expropriation as to the object of a national housing special supply pursuant to relevant Acts and subordinate statutes and then notified the plaintiffs.

However, according to the provisions of Article 78 (1) of the Public Works Act, Article 40 (2) of the Enforcement Decree of the Public Works Act, Article 38 of the Housing Act, and Article 19 (1) 3 (c) of the Rules on Housing Supply, where measures for relocation are taken against a person who provides housing, etc. for the implementation of an urban planning project, the above measures for relocation is deemed to give legal interest to the person who cooperates in the urban planning project concerned to demand special supply opportunities, and thus, the right to request special supply is recognized (see Supreme Court Decision 98Du17043 delivered on August 20, 199, etc.). In this case, the plaintiffs' refusal of the application for special sale on the basis of the above provisions constitutes a disposition of rejection that becomes subject to administrative litigation even if the defendant, who is the project operator, refuses the application through the civil petition form. Therefore, the above defendant's assertion is without merit.

3. Whether the disposition of this case is unlawful

A. Summary of the plaintiffs' assertion

Even a multi-household house on the registry, such as the instant house, is physically partitioned so that two or more households can live in the building from the stage of design and construction, and if each household unit has independent room and living facilities are installed, so that each household can carry on an independent residential life, it shall be the same in substance as that of the multi-household house. In such a case, in light of the legislative intent of Article 78(1) of the Public Works Act, which intends to protect the residential life of a person who provided a residential building for the implementation of public works, a special unit of national housing should be granted.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Facts of recognition

(1) At the time of new construction on November 4, 1989, the instant housing was designed and constructed so that all six households, including two households with the 2nd floor, the 1st floor, the 2nd floor, and the 2nd floor household with the 2nd floor above the ground, can independently carry out their residence. The sales were made by each household, but the ownership was registered in the form of share sales, but the taxes and public charges were also imposed by each household.

(2) On January 24, 1990, the plaintiff Song Jong-won purchased each of the 202 stories above ground and completed a share registration until the time when the implementation plan of the urban planning project in this case was approved. The plaintiff Han-soo had been residing independently until the time when the implementation plan of the urban planning project in this case 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) Markets:

In light of the legislative purport of Article 78(1) of the Public Works Act, the legislative purport of Article 78(1) of the said Act is to carry out relocation measures to enable at least those who lose their base of living due to the provision of necessary land, etc. due to the implementation of public works. In light of such legislative purport, unless otherwise specifically provided in the laws and regulations related to relocation measures, the objects of socially independent ownership can be recognized regardless of the form of registration, and if a building that allows the operation of an independent residential life has been provided for the implementation of public works, if the building such as physical structure, etc. has been provided for the implementation of public works, the provider should establish relocation measures, etc. to be individually supplied with independent residential facilities. If national housing is specially supplied pursuant to Article 19(1)3(c) of the Rules on Housing Supply, the right to apply for the special supply of national housing should be individually granted to the housing provider.

In the case of this case, as seen earlier, although the housing of this case is registered as a single building, it is divided into six independent houses in the actual situation, and has structural structure or independence, each ownership can be the object of each ownership. Since the plaintiffs have the right to dispose of each ownership, they can individually file an application for special supply of national housing according to the relocation measures of this case.

In this regard, the defendant asserts that Article 5 (4) of the Seoul Special Metropolitan City Supply Rules, which 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 be specially supplied with national housing, etc." under Article 5 (4) of the Seoul Special Metropolitan City Supply Rules, which provides that "a person who has changed a non-residential building into a residential place or a person who newly acquired the ownership of a new building after changing a multi-household house into a multi-household house after the date of public inspection and announcement for the implementation of an urban planning project, etc." under Article 19 (2) 2 of the same Rules, is excluded from the object of supply. In light of the fact that the housing of this case is divided into multi-household house into multi-household house and multi-household house, one representative or a joint owner should be supplied in case of a multi-household house registered by several persons on real estate registration as joint ownership, and if not, it does not comply with the principle of equity with the owners of multi-household housing.

However, the above supply guidelines are merely the administrative guidelines that prescribe the internal standards and procedures of the Seoul Special Metropolitan City (including the autonomous Gu) for the special supply of the national housing, and they do not externally bind the people or the court. In addition, even if not, it is interpreted that the above supply guidelines include the buildings which can be the objects of independent ownership, such as the housing in this case, and the physical structure, etc. can be the objects of independent ownership in the building under joint ownership, and the buildings which are allowed to carry on an independent residential life, as long as they correspond to the objects of special supply under the Housing Supply Rules, they are invalid in violation of the Rules on Housing Supply, which is a delegation clause. Therefore, the plaintiffs cannot be excluded from the objects of the special supply of the national housing solely on the ground that they are the owners of multi-family housing. Accordingly, the above argument by the defendant is without merit.

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified and it is so decided as per Disposition.

Judges Kim Jung-han (Presiding Judge) and Kim Jong-chul