[1] The method to determine whether a building constitutes a “residential building” under Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and Article 54 of the Enforcement Rule of the same Act

[2] In a case where a tenant who resides in a building incorporated into a zone where public works are performed claims for relocation expenses, etc. to a project implementer, but refuses to pay relocation expenses on the building ledger of the building on the ground that the purpose of use in the building is not a "general restaurant", the case holding that the above building constitutes a "residential building" subject to payment of relocation expenses

[1] Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Article 54 of the Enforcement Rule of the same Act, and other related Acts and subordinate statutes are systems established by active and policy consideration of the State as part of livelihood compensation such as restoring migrants to their original living conditions. The original purpose of the plan to take such measures is to restore the original living conditions of the State. Since the residents who prepare such measures are not easy to move and have lost their base of living need to pay considerable expenses to restore the previous living conditions and thus, they must be compensated for them in terms of livelihood security. In light of the above related Acts and subordinate statutes, determination of the "residential building" should be made depending on whether they are actually used for residential purpose regardless of the actual purpose of use in the public register of the building. The purpose of the plan should be jointly determined by taking into account the purpose of use, structure and form of the building, and relationship of use, whether they are engaged in daily life

[2] In a case where a tenant who resides in a building incorporated into a zone where public works are performed filed a claim for relocation expenses, etc., but refuses to pay relocation expenses on the building ledger of the building on the ground that the purpose of use on the building ledger is not to be subject to relocation expenses, the case holding that the building constitutes a "residential building" subject to payment of relocation expenses, in light of the fact that the building is constructed in the form of a house in appearance, and the tenant actually resided after the relocation report was completed, and that the tenant actually resided therein, etc.

[1] Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 54 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 78 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 54 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land

Plaintiff (Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm East, Attorney Choi Woo-woo, Counsel for defendant-appellant)

September 30, 2009

1. The defendant shall pay to the plaintiff 6,424,060 won with 20% interest per annum from May 1, 2009 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. On December 3, 2007, the Minister of Construction and Transportation: (a) on December 3, 2007, the Defendant was the project implementer to conduct a construction project for the Daegu High-speed Railroad Construction Project (hereinafter “instant project”); and (b) approved the instant project implementation plan and publicly notified under Article 207-544 of the Ministry of Construction and Transportation’s notification.

B. On October 2, 2003, the Plaintiff leased part of 10.23 square meters of the housing (number omitted) located in the Seogu-gu Seoul Metropolitan Scatteringdong (hereinafter “instant building”) located within the instant project site district, and had been residing in the instant building on June 7, 2004. On April 30, 2007, the Plaintiff filed a move-in report to the instant building on the move-in report. On May 3, 2007, the Plaintiff moved to another resident registration address to the instant building.

C. According to Article 54(2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), the Defendant: (a) only the tenants of the “residential building” to be incorporated into the public project implementation zone; and (b) the instant building in which the Plaintiff is residing is not included in the “general restaurant”; and (c) on the ground that the current status of use at the time of incorporation into the public project implementation zone is “commercial use” and notified that it does not constitute the subject of the payment of the relocation cost.

D. Meanwhile, at the time of the Plaintiff’s initial move-in report, the instant building was “house” on the general building ledger, and its use was changed to “general restaurant” on August 11, 2004. In the instant building, Nonparty 2 reported the food service business on October 5, 2004, and operated “Malsan restaurant,” a general restaurant.

[Reasons for Recognition] Unsatisfy, entry and video of Gap evidence 1 through 15 (including branch numbers in case of additional number), inquiry results of the Seo-gu Seoul Metropolitan City Office of this Court, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

According to the legislative purport that the Public Works Act requires the tenant of a residential building to pay housing relocation expenses, and even if the purpose of the public register in the place where the tenant resided for more than three months is not a house, if any member of the household actually occupies and uses the residential building for the purpose of residence, the tenant shall be deemed to have leased the building. Since the Plaintiff moved into the building in this case, it has been actually using the residential place until now. Therefore, the Defendant shall pay the Plaintiff the total of KRW 6,424,00 for relocation expenses for four months and the total of KRW 339,740 for the director expenses.

(2) The defendant's assertion

In light of the legislative purport of the relevant statutes, such as Article 78 of the Public Works Act, “residential building,” which is the object of the cost of relocation of a house, requires the use of the building in the building ledger as of the date of the public announcement of the project approval, and thus, as long as the use of the building in this case is “general restaurant,” the Plaintiff cannot be the subject of the cost of relocation of a house, and it is not recognized that the Plaintiff occupied the building in this case for residential purpose. Therefore, there

B. Relevant statutes

◆ 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률

Article 78 (Formulation, etc. of Relocation Measures)

(5) Residents in any residential building shall be indemnified by calculating expenses incurred in moving their residence and expenses incurred in transporting movable property, such as household effects, etc.

(9) Compensation under paragraphs (5) and (6) shall be governed by the standards determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

◆ 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률 시행규칙

Article 54 (Indemnity for Relocation Expenses)

(2) Where a tenant of a residential building relocated due to the implementation of public works has resided in a zone where the public works are performed at the time of the project approval, etc. or the public works are publicly notified under the relevant Acts and subordinate statutes, he/she shall reimburse him/her for relocation expenses for at least three months according to the number of his/her household members: Provided, That with respect to tenant who moved into an unauthorized building, etc. at the time of the public works approval of the project approval, etc. or the public announcement, etc. under the relevant Acts and subordinate statutes for public works,

Article 55 (Compensation, etc. for Relocation Expenses of Movables) (2) For residents in any residential building incorporated into a zone where public works are performed, directors' expenses (referring to expenses necessary for transporting movable property, such as household effects, etc.; hereafter the same shall apply in this Article) calculated according to the standards in attached Table 4 shall be compensated.

[Attachment 4]

One minute for three persons less than 33 square meters in the packing expenses for directors' wage and freight rates of less than 33 square meters, which are included in the main sentence of this Article x 0.15

C. Determination

(1) Whether the instant building constitutes a residential building

In light of Article 78 of the Public Works Act and Article 54 of the Enforcement Rule of the same Act, measures for resettlement under related Acts and subordinate statutes such as the restoration of migrants to their original living conditions, etc., which have been prepared by the active and policy consideration of the State as part of living compensation such as restoration of their original living conditions, etc. The original purpose of the plan for the relocation of residents is not easy to transfer them, and the residents who lose their base of living need to pay compensation to restore their previous living conditions in order to restore their original living conditions. Therefore, in determining the "residential building" under the above related Acts and subordinate statutes, the determination shall be made according to whether they are actually used for their residence regardless of their actual use. In addition, the determination shall be made in consideration of the purpose of use, structure and form of the building, and whether they are engaged in daily life at the same time.

In this case, the following circumstances, which are acknowledged by comprehensively considering the purport of the entire arguments as to the above evidence, the building of this case was originally written in its original building ledger as "house", and its use was changed to "general restaurant" around August 11, 2004 after the plaintiff moved in. The building of this case is constructed in the form of house. The building of this case is constructed in appearance in one side of the house, the plaintiff resided in one side of the house, the kitchen and the kitchen used by the main, and the other side of the house is composed of the kitchen and the kitchen of the restaurant. The restaurant inside the building of this case is operated by the non-party 2, not the plaintiff. The restaurant inside the building of this case is kept in the room in the room in which the plaintiff resided, such as the house of the ward, the television and the kitchen of the kitchen, the water supply and drainage facilities, etc., and the plaintiff actually resided after completing the moving-in report on the building of this case, it is reasonable to view that the building of this case constitutes "the building entitled to residential expenses".

(2) Whether the Plaintiff’s relocation expenses and directors’ reimbursement claims exist

Under Articles 54(2) and 55(2) of the Enforcement Rule of the Public Works Act, the right to claim for the cost of moving a house or the cost of moving a house for movable property naturally occurs when the tenant or the resident of a residential building that is relocated due to the implementation of public works meets the requirements of each of the above provisions. According to the above facts, the plaintiff is aware that the tenant of a residential building who leased part of the building of this case from Nonparty 1, who is the owner of the building of this case, resided in the building of this case at KRW 80,00 per month, and is the tenant of the building of this case who resided in the building of this case for more than three months at the time of December 3, 207, the public project approval date of this case. Accordingly, the plaintiff acquired the right to claim

(3) The amount of moving expenses and moving expenses.

According to Eul evidence No. 1, the plaintiff's four-month relocation expenses under Articles 54(2) and 55(2) of the Enforcement Rule of the Public Works Act are 6,084,320 won, and the director's expenses are 339,740 won.

(4) Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff 6,084,320 won for relocation of residence, and 339,740 won for directors, and 6,424,060 won for delay at the rate of 20% per annum from May 1, 2009 to the day of full payment, as requested by the plaintiff, following the day when the copy of the complaint of this case was served to the defendant.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges Hadal (Presiding Judge) Maximum or gender standards