(영문) 대법원 2016.5.12.선고 2014다37859 판결

The part of the lower judgment against the Defendant against the Plaintiff T and U is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals by the plaintiffs and the appeals by the plaintiffs other than the plaintiffs T and U are dismissed.

The costs of appeal between the plaintiffs AF, AD, AE, N, AO, P, Q, Q, AR, ATR, AS, AU, R, R, Y, Y, AX, AY, AY, and the defendant are assessed against the above plaintiffs, T, and the remainder of the plaintiffs and the defendant except the above plaintiffs, T, and U.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

1) The lower court determined that the Defendant’s assertion that Plaintiff AG, AH, AJ, AK, K, K and Nonparty Z, AA, and AB (hereinafter “Plaintiffs, etc.”) constituted grounds for the exclusion of the Plaintiff’s residents from the relocation measures under Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”), and Article 40(3)1 and 2 of the Enforcement Decree of the former Act (amended by Presidential Decree No. 2072, Feb. 29, 2008; hereinafter “former Public Works Act”) was the one subject to relocation measures under Article 6(1) of the former Enforcement Decree of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects, and thus, the Plaintiff’s housing and the one subject to relocation measures under Article 40(3)2 of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works Projects.

2) Article 6 of the Addenda to the Enforcement Decree provides that "the owner of a building constructed without obtaining permission or filing a report as of January 24, 1989 without obtaining such permission or filing a report shall be included in the person subject to relocation measures, notwithstanding Article 40 (3) 1." In light of the language and details of the foregoing Addenda provisions and the background leading up to introduction, and the purport and structure of each subparagraph of Article 40 (3) of the Enforcement Decree of the former Public Works Act stipulating a person subject to relocation measures, the above Addenda provisions purport to exceptionally exclude the owner from applying Article 40 (3) of the former Enforcement Decree of the Public Works Act, among the requirements for exclusion from the persons subject to relocation measures under each subparagraph of Article 40 (3) of the former Enforcement Decree of the Public Works Act as of January 24, 1989 (see, e.g., Supreme Court Decision 201Da40274, Apr. 27, 2015).

In the same purport, the court below is just in holding that even if an unauthorized building constructed before January 24, 1989 was acquired after January 24, 1989, it does not constitute a reason for excluding a person subject to relocation measures under Article 40 (3) 1 of the Enforcement Decree of the former Public Works Act. In so doing, the court below did not err by misapprehending the legal principles as to Article 6 of the Addenda of the Enforcement Decree, contrary

3) However, it is difficult to accept the lower court’s determination on whether the instant project falls under Article 40(3)2 of the former Enforcement Decree of the Public Works Act on the basis of the announcement date of each district compensation plan for the following reasons.

A) According to Article 23 of the former Urban Development Act (amended by Act No. 8376, Apr. 11, 2007; hereinafter the same), Article 78(1) of the former Public Works Act, and Article 40(3)2 of the former Enforcement Decree of the Public Works Act, a project implementer shall, in principle, exclude a building owner who does not continuously reside in the area from the date of concluding the contract or the date of expropriation as a matter of principle for the purpose of providing a residential building due to the implementation of an urban development project (hereinafter referred to as a "person subject to relocation measures"), for a person who is deprived of the basis of livelihood due to the provision of a residential building due to the implementation of an urban development project (hereinafter referred to as a "person subject to relocation measures").

Meanwhile, Article 21(2) of the former Urban Development Act stipulates that the Public Works Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act. The former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree. The main text of Article 78(4) stipulates that “The details of relocation measures include road, water supply facilities, drainage facilities, and other basic living facilities at a normal level, such as public facilities, in the resettlement area (including a housing complex constructed by the implementation of relocation measures), shall be included in the relocation settlement area (including a housing complex constructed by the implementation of relocation measures), and the expenses incurred therein shall be borne by the project operator.”

B) In cases where the Act on the Expropriation of Land is planned to apply mutatis mutandis to the procedures for the expropriation of land in addition to the public announcement of project approval under the relevant Act, the "date of public announcement under the relevant Act and subordinate statutes for public projects" under Article 40 (3) 2 of the former Enforcement Decree of the Public Works Act, 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, e.g., Supreme Court Decision 2007Du1340, Feb. 26, 2009). The criteria for determining whether a person is eligible for relocation measures as prescribed by the relevant Act and subordinate statutes shall be individually specified pursuant to the relevant Act and subordinate statutes based on each public project. Since the application of the Act on the Establishment of Relocation Measures, etc., which is a mandatory provision, should be interpreted as one of the statutory base dates for relocation measures, and the policy needs to prevent speculative transactions under the Urban Development Act, Article 20(3)2 of the former Enforcement Decree of the Urban Development Act shall not be deemed as the statutory basis for relocation measures (see Article 308).

C) According to the facts and records acknowledged by the court below, most of the plaintiffs AG, etc. arguing that the defendant is not a person subject to the relocation measures under the law, even if based on the date of public notice on the designation of the urban development zone of the project of this case, the moving-in report was made before that date, but the plaintiff T and U transferred the status of each sales contract to the plaintiff T and U, and only thereafter, the moving-in report was made to the relevant building. Thus, the court below should have reviewed whether the above date of public notice is included in the scope of the person subject to the relocation measures under Article 78 (4) of the former Public Works Act.

Nevertheless, solely based on its stated reasoning, the lower court determined that Plaintiff T and U who acquired the status of each sales contract from A and AB constituted a person subject to relocation measures subject to Article 78(4) of the former Public Works Act. In so determining, the lower court erred by misapprehending the legal doctrine on Article 78(1) of the former Public Works Act, thereby adversely affecting the conclusion of the judgment.

B. Regarding ground of appeal No. 2

The lower court rejected the Defendant’s assertion that the sales price paid by the Plaintiffs should include the cost of the basic living facilities, and that the cost of the basic living facilities should be calculated by deducting 10,839 square meters of the road site gratuitously acquired from the road management agency.

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles on Article 78(4) of the former Public Works Act, as alleged in the grounds of appeal.

2. Regarding the plaintiffs' grounds of appeal

A. As to the first ground for appeal, Article 78(4) of the former Public Works Act, which is a mandatory provision on the cost of construction of basic facilities, does not apply to a person subject to the relocation measures beyond the scope of the person subject to the relocation measures as stipulated by the Act, as the content of the relocation measures. Even if a project operator is included in a person subject to the relocation measures beyond the scope of the person subject to the relocation measures as stipulated by the former Public Works Act, the relocation measures provided to a non-resident who is not a person subject to the relocation measures as stipulated by the Act and subordinate statutes, shall be deemed as being beneficial, not as a duty under the Act and subordinate statutes, so the project operator shall not be deemed to bear the duty to install basic facilities pursuant to Article 78(4)

Examining the above legal principles in light of the above legal principles, the court below is just in holding that the plaintiff AF, AD, AE, N, AO, P, Q, Q, AR, AS, AS, ATS, AU, AV, Y, S, AW, AX, AY, AY, and AZ are those excluded from the person subject to relocation measures under Article 40 (3) of the former Enforcement Decree of the Public Works Act or those who take over the status of the sales contract, and thus do not constitute those subject to relocation measures under Article 78 (1) and (4) of the former Public Works Act. There is no error in the misapprehension of legal principles regarding beneficial or discretionary administrative dispositions or in violation of the principle of free evaluation of evidence in violation of logical and empirical rules, as alleged in the grounds of appeal.

B. As to the ground of appeal No. 2, the purpose of Article 78(4) of the former Public Works Act is to provide a basis for living for those subject to relocation measures, the term “basic living facilities according to the relevant regional conditions, such as roads, water supply facilities, drainage facilities, and other public facilities,” under the relevant provisions, such as Article 23 of the Housing Act, means roads, water supply and drainage facilities, electric facilities, telecommunications facilities, gas facilities, district heating facilities, etc., which are to be installed by a project proprietor who implements a housing construction project or a housing site development project under the relevant statutes, such as Article 23 of the Housing Act (see, e.g., Supreme Court en banc Decision 2007Da63089, 63096, Jun.

The lower court determined that the 5,199 square meters of Dokdo Island was a type green belt created for the purpose of systematically linking the open space in parks, etc. and providing space such as walking, rest, rest, rest, etc. to the general public, and was not a basic living facility such as roads.

In light of the aforementioned legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as alleged in the grounds of appeal.

The lower court determined that, in the case of civil engineering costs, only the amount calculated by multiplying the total project area by the ratio occupied by roads, which are the basic living facilities sites, to the total project area, should be deemed the cost incurred in creating basic living facilities.

In light of the records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules as alleged in the grounds of appeal.

D. As to the ground of appeal No. 4, the Plaintiffs’ assertion that the total land cost should be included in the relocation cost is not a legitimate ground of appeal, since the Plaintiffs’ withdrawal from the first instance court but the appeal was made only in the final appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff T and U is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal and all appeals against the plaintiffs other than the plaintiff T and U are dismissed. The costs of appeal are assessed against the plaintiff AF, AD, AE, N, AE, AP, P, Q, Q, AP, AS, ATR, AS, AS, AV, AU, AV, AV, Y, AW, AW, AW, AY, AY, AY, and Z, and the costs of appeal are assessed against the above plaintiffs and the defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.