(영문) 서울고등법원 2012.7.3. 선고 2012누3752 판결

The part against the plaintiffs in the judgment of the court of first instance is revoked. The defendants jointly and severally pay to the plaintiffs Eul 5,38,710 won, 4,439,220 won, 4,439,220 won, and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

Reasons

1. Facts of recognition;

① On November 3, 2003, the Sung-nam City publicly announced the improvement plan (hereinafter referred to as the “instant project”) for the bank 2 residential environment improvement project (hereinafter referred to as the “instant project”) as the bank 2003-524 of the Sung-nam City public announcement as to the 169,966m2 Japan-dong 1342, Jung-gu, Seongbuk-gu, Sungnam-gu, Seoul (hereinafter referred to as “the first public perusal and public announcement”).

② On March 20, 2006, the Sungnam City changed the improvement zone of the instant project into 182,918 square meters in the Jung-gu Seoul Special Metropolitan City, Sungnam-gu, 2006, the Seoul Special Metropolitan City announced the improvement plan of the instant project (hereinafter referred to as “the second public perusal and announcement”) to the public for inspection and announcement as prescribed in Article 2006-278 of the Sungnam-si public announcement.

③ On October 29, 2007, the Governor of the Gyeonggi-do designated and publicly announced the amount of KRW 182.936.4m2 as the improvement zone for the project of this case (hereinafter referred to as the “improvement zone of this case”) under the Gyeonggi-do Public Notice No. 2007-367, Seongbuk-gu, Seoul Special Metropolitan City.

④ On July 15, 2008, the Sungnam City announced the designation of Sungnam City and the Korea National Housing Corporation (after this, Defendant Korea Land and Housing Corporation comprehensively succeeded to all rights and obligations of the Korea National Housing Corporation) as an implementer of the instant project.

⑤ On June 15, 2009, the Sungnam City approved the implementation of the rearrangement zone of this case and publicly notified the implementation of the improvement zone of this case as the notification of Sungnam-si on June 15, 2009.

④ On June 18, 2009, the Sungnam City publicly announced a compensation plan for the land, etc. included in the instant project. On August 24, 2009, the Sungnam-si publicly announced a relocation plan to select one of the owners of residential buildings located in the instant rearrangement zone before March 20, 2006, which is the date of the public inspection and announcement of the instant project under Article 2009-9997 of the notification of Sungnam-si, Sungnam-si, and the relocation plan was formulated and publicly announced to allow the owners of residential buildings located in the instant rearrangement zone before March 20, 206 to occupy the apartment unit with a size of 85 square meters or less in the area of the Housing Site Development Project for Sungnam-

7. The Plaintiffs were those who owned each residential building as indicated in the column of the instant rearrangement zone and resided therein, and were compensated for the said residential building due to the instant project.

A person shall be appointed.

8. In addition, the plaintiffs selected the right to move into the village housing site development project zone of not more than 85m2 within the area of the village housing site development project of not more than Do and were subject to special supply of apartment buildings not more than 85m2 with an exclusive area of not more than 85m2 constructed in DoV within the village

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 9, Eul evidence 1 to 4, Eul evidence 1, Eul evidence 1, the purport of the whole pleadings

2. Determination

A. The assertion

(1) The plaintiffs' assertion

Article 40 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) shall apply mutatis mutandis to the expropriation or use of land or a building for the implementation of a project as the owner who has resided in a residential building located in the rearrangement zone in this case. Article 78(5) of the Public Works Act and Article 54(1) of the Enforcement Rule of the same Act provide that the owner of a residential building incorporated in the rearrangement zone shall compensate for the relocation cost of the residential building. Thus, the Defendants jointly and severally obligated to pay the Plaintiff, etc. the relocation cost.

(2) The defendants' assertion

The relocation measures are a system to restore the previous living conditions of migrants to guarantee their living worthy of human beings at the same time. The relocation expenses are a system that pays the amount of money to the social security level for those who are expected to suffer special difficulties due to the relocation of their residence. Articles 35 and 36 of the Urban Improvement Act provide that measures equivalent to temporary accommodation, such as temporary accommodation, temporary accommodation of facilities such as rental houses, arrangement of the capital of the house, etc. may be taken as measures for relocation, and the relocation measures are measures of the same nature as the compensation for the relocation expenses that are to be resolved temporarily or at least temporarily. Therefore, the relocation measures and the payment of the relocation expenses under the Urban Improvement Act are in a selective relationship. Therefore, as long as the Defendant Corporation granted the right to move to the Plaintiff, etc. in the area of the rural Housing Site Development Project in Seongbuk-do, and provided the relocation measures, there is no obligation to pay the relocation expenses separately to the Plaintiff, etc.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether the person is obligated to pay the cost of housing relocation and the date on which the person eligible to receive the cost of housing relocation is determined.

Articles 36(1) and 40(1) of the Urban Improvement Act (amended by Act No. 9729, May 27, 2009; hereinafter the same) provide that a project implementer shall make the owners or tenants of the houses removed due to the implementation of a residential environment improvement project and a housing redevelopment project reside temporarily in the facilities, such as rental houses, etc. located outside and outside the relevant rearrangement zone, or take measures corresponding to temporary expropriation such as arranging a loan of housing funds, etc. In addition, Article 78(5) of the Public Works Act and Article 54(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 180, Nov. 13, 2009; hereinafter the same) provide that the Act shall apply to the expropriation or use of the ownership and other rights of the land or buildings to implement a rearrangement project, except as provided for in the Urban Improvement Act.

The provision of temporary accommodation facilities to a housing owner under the Urban Improvement Act can be seen as a measure to promote the housing stability of the owners of housing demolished during the implementation period by having the project implementer of a residential environment improvement project and a housing redevelopment project provide temporary accommodation facilities to the owner of housing demolished due to the implementation of a residential environment improvement project and a housing redevelopment project, or by taking the measures corresponding to the provision of the temporary accommodation facilities such as arranging housing loans. However, the housing relocation cost to be paid to the owners of residential buildings relocated following the implementation of public works can be deemed as having the nature of money paid in the social security level for the owners of housing who are faced with special difficulties due to the policy purpose to facilitate the implementation of the project by encouraging the early relocation of the owners of residential buildings residing in the relevant public works implementation zone, and the provision of temporary accommodation facilities, such as the Urban Improvement Act and the Enforcement Rule of the Public Works Act, the provision of the temporary accommodation facilities and the payment of housing relocation cost as the duty of the project implementer, and the text, contents, and purpose of the above provisions are not explicitly excluded from the recipients of the housing relocation cost.

The base date for determining the person eligible for compensation for relocation expenses for the tenants of residential buildings under the Urban Improvement Act shall be deemed the date of public inspection and announcement of the improvement plan, when it becomes possible for residents, etc. to know that the implementation of the improvement project is scheduled due to the public announcement of the improvement plan (see Supreme Court Decision 2009Du16824, Sept. 9, 2010). In the case of the ownership of residential buildings, early relocation is necessary, and it is difficult for the tenants to suffer from difficulties due to their loss of their base of living due to the relocation of dwelling. If the criteria for determination of relocation of residential buildings vary between the tenants and the owners, if both the tenants and the owners of the tenants who resided in the same residential building with different time, receive compensation for relocation expenses from each other, it may be possible to determine the date for determination of relocation expenses for residential buildings uniformly rather than the date for determination of relocation expenses, and if there are many interested parties to understanding that relocation expenses for residential buildings are expected to be implemented as soon as the date of announcement of relocation of residential buildings, it is reasonable for the purpose of the announcement.

In this case, as seen above, although the first and second public perusal and public announcement was made with respect to the business of this case, in full view of the overall purport of the pleadings as stated in the evidence Nos. 3, 9, 10-3, and 1, the procedure related to the traffic impact assessment of the business of this case was conducted after the date of the first public inspection and public announcement, and the second public inspection and public announcement was conducted. The defendants can find the fact that the basic date for determining the person eligible for compensation for the housing relocation expenses to the tenants of this case was set on March 20, 2006, which is the date of the second public inspection and public announcement. Thus, it is reasonable to determine the basic date for determining the person eligible for compensation for the housing relocation expenses to the owner of a residential building of this case as stipulated in Article 54(1) of the Enforcement Rule of the Public Works Act, the second public inspection and public announcement should be made on March 20, 2006, and it should be made at the time of the owner of the building concerned.

(2) Determination on the plaintiffs

A) Plaintiff B

The plaintiff B asserted that the moving-in report was made from around 2000 to actually reside in the improvement zone of this case, and that the ownership was transferred to the place of residence of this case under the DS 402, and therefore, it is subject to the payment of the moving-in expenses.

According to the statement 51 of evidence No. 1-51, the plaintiff Eul acquired ownership of the residential building (J No. 401 of Sungnam-gu, Sungnam-gu) on June 30, 2006, and it is not the owner of the relevant residential building as of March 20, 2006. The plaintiff Eul had been residing in the rearrangement zone of this case before that time and owned other residential buildings cannot be viewed as a person eligible for compensation for relocation expenses. The plaintiff Eul's assertion is without merit.

B) Plaintiff G, H

Unlike the moving-in report, Plaintiff G asserted that it was residing in Q No. 102, a residential building, with the network DT from April 2, 2005 to his spouse, and that, unlike Plaintiff Hdo moving-in report, Plaintiff G was living in accordance with his spouse DU No. 1, a residential building from March 14, 2006 to his spouse DU. 1.

According to the statements in Gap evidence No. 2-79 and 114, plaintiff G can be recognized as having moved-in report to each pertinent residential building on Nov. 17, 2006, and plaintiff H on Apr. 25, 2006. The evidence submitted by the above plaintiffs alone is insufficient to recognize that the above plaintiffs were residing in each relevant residential building as of the date of the second public inspection and announcement. Thus, the above plaintiffs cannot be deemed as being eligible for compensation for moving-in expenses. The above plaintiffs' assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiffs' appeal is dismissed as it is without merit.