[1] The basic date for determining a person who is not a person subject to relocation measures for an urban development project (=the date a public notice is given under relevant statutes for public works)

[2] The case reversing the judgment of the court below on the ground that the person subject to the relocation measures pursuant to the Eunpyeong New Town development project is "the date when the public notice, etc. is made under the relevant Acts and subordinate statutes for public works" as stipulated in Article 40 (3) 2 of the Enforcement Decree of the Act on the Acquisition of Land, etc.

[1] Article 40 (3) 2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 40 (3) 2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff

Defendant Corporation (Attorney Go Young-deok, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu19392 decided January 9, 2009

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007; hereinafter “Urban Development Act”); Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”); Article 40(3)2 of the Enforcement Decree of the Public Works Act (the Public Works Act was enforced from January 1, 2003; Article 3 of the Addenda provides that “the dispositions, procedures, and other activities conducted under the previous Land Expropriation Act and the Act on Special Cases concerning the Acquisition of Land and the Compensation for Damages at the time of the enforcement of this Act shall be deemed to have been performed under the provisions of this Act” (the Act applicable to the relocation measures or the dispositions of this case shall be deemed to be the Public Works Act); Article 78(3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 40(3)2 of the Enforcement Decree of the Public Works Act shall be excluded from the establishment of relocation measures or the relocation measures for public projects.

In full view of the language, content, legislative intent, etc. of each of the above provisions, “date of public notice, etc. under the relevant Acts and subordinate statutes for public works” under Article 40(3)2 of the Enforcement Decree of the Public Works Act is the standard for determining a person who is not a person subject to relocation

2. According to the facts and records acknowledged by the court below, the head of Seoul Special Metropolitan City announced the promotion plan for the new town development project of this case on October 23, 2002, and determined and announced on November 25 of the same year as the base date for the relocation measures of the new town development project of this case on November 20 of the same year, and announced the designation of the urban development zone and the approval for the development plan on February 25, 2004. The defendant announced the compensation plan on June 24 of the same year and announced the relocation measures of this case on October 19 of the same year. The person subject to the relocation measures of this case is ① the person who owned the house on his own land from 0 days before the base date for the relocation measures of this case to the date of conclusion of the agreement or expropriation ruling, ② the person who consulted with and voluntarily relocated the above requirements, ③ the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's land ownership within the project zone.

Examining these facts in light of the legal principles as seen earlier, there is no ground to view that the relocation measures of November 25, 2002, which is the base date of the relocation measures of this case, constituted the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public projects" as stipulated in Article 40 (3) 2 of the Enforcement Decree of the Public Works Act. Moreover, the relocation measures of this case are not determined as the person who is not the one subject to relocation measures as of November 25, 2002, which is the base date of the relocation measures, but as of November 25, 2002, once the person who acquired the housing within the project area of this case was designated as the one subject to relocation measures as of the date of public announcement of the indemnity plan, the consultation contract and voluntary migration, the date of conclusion of the agreement or the ruling of expropriation, whether the former household is homeless in the housing in the project area, and the type and area of the apartment to be supplied to the person subject to relocation measures, apart from what is the one subject to relocation measures.

Nevertheless, the court below rejected the plaintiff's claim of this case without examining whether the plaintiff is a person subject to relocation measures according to the contents of the compensation plan of this case, which concluded that the base date of the relocation measures of this case should be the same as that of the "date of public notice, etc. under the relevant Acts and subordinate statutes" or similar days. Thus, the court below erred by misapprehending the legal principles on relocation measures or by misunderstanding the contents of the compensation plan of this case, which affected the conclusion of the judgment. The ground of appeal

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)