(영문) 서울행정법원 2012.6.22. 선고 2012구합7066 판결

1. On August 1, 201, the Defendant’s disposition that the Plaintiff excluded from those subject to measures for relocation of a B urban development project against the Plaintiff is revoked.

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

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On December 30, 2005, the Mayor of Seoul Special Metropolitan City (hereinafter referred to as "the project area in this case") set the basic date for the relocation measures for the B urban development project, which is promoted for the Gangseo-gu Seoul Metropolitan Government, D, E, and F G large scale 3,364,000 square meters (hereinafter "the project area in this case"), as the project implementer, and publicly announced (H in Seoul Special Metropolitan City) as the basic date for relocation measures (hereinafter "basic date for relocation measures in this case").

B. On December 28, 2007, the Mayor of Seoul Special Metropolitan City announced the designation of the urban development zone and the approval of the development plan (I) on the project zone of this case on December 28, 2007. On December 30, 2008, the designation of the urban development zone, the alteration of the development plan, the establishment of the development plan, the authorization of the implementation plan and the publication of the topographic drawings (J) were made on February 11, 2010.

C. The defendant on December 23, 2008, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

Article 78 of the Public Works Act (amended by Act No. 11017 of Aug. 4, 201; hereinafter referred to as the "Public Works Act") and Article 40 of the Enforcement Decree of the same Act (hereinafter referred to as the "Criteria for Relocation Measures of this case"), which include the following matters, were publicly announced.

A person shall be appointed.

D. Meanwhile, the Plaintiff acquired No. 101 of Gangseo-gu Seoul Metropolitan Government L1st floor located in the instant project zone after the date of the relocation measures of this case (hereinafter “instant housing”).

E. On January 7, 2009, the Plaintiff filed an application with the Defendant for the selection of the Plaintiff as a person subject to relocation measures (national housing special supply). On August 1, 2011, the Defendant notified the Defendant on the ground that M, which is the same household as the Plaintiff, owns N apartment Nos. 302, 302, and 302, as of November 10, 2006, the Plaintiff does not constitute a person subject to special supply of national housing and is excluded from those subject to relocation measures (hereinafter referred to as the “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

Although the Plaintiff constitutes a person subject to relocation measures by acquiring the instant housing before the public announcement of designation of an urban development zone and the public announcement of an indemnity plan for the instant project zone, the Defendant excluded the Plaintiff from a person subject to special supply of national housing, and denies the status of the person subject to relocation measures. As such, the instant disposition

(2) The defendant's assertion

The base date of the relocation measures of this case falls under the "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, and thus, the plaintiff acquired after December 30, 2005, the base date of the relocation measures of this case, should be excluded

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

As alleged by the defendant, it is examined whether the base date of relocation measures announced on December 30, 2005, which was before the designation of an urban development zone for the project area of this case, falls under the "date the public announcement is made in accordance with the relevant Acts and subordinate statutes for public works" under Article 40(3)2 of the Enforcement Decree

Article 24 of the Urban Development Act provides that "the operator shall establish and implement the relocation measures for those who lose their base of livelihood due to the provision of land, etc. necessary for the implementation of an urban development project as prescribed by the Public Works Act", and according to Article 78 (1) of the Public Works Act and Article 40 (3) 2 of the Enforcement Decree of the same Act, a project operator shall establish and implement the relocation measures or pay resettlement funds to those who lose their base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter referred to as "persons subject to the relocation measures"), as prescribed by the Enforcement Decree of the same Act, but the owner of a building who does not continuously reside from the date of the public announcement under the relevant Acts and subordinate statutes for the public works to the date of the contract or the date of the expropriation decision, but does not separately stipulate the relocation measures as a matter of principle, so the base date of the relocation measures announced by the defendant does not constitute "the date of the public works under Article 40 (3) 2 of the Enforcement Decree of the Public Works Act".

Since the Defendant determined whether the instant disposition is subject to relocation measures according to the base date of relocation measures publicly announced after the enactment and implementation of the Urban Development Business Guidelines, the Defendant asserts that the administrative rules are lawful, it is also required to be enacted in the form of administrative rules, not the statutory order, but the specific and individual laws and regulations. In other words, if it goes beyond the scope of delegation of the laws and regulations, the external binding force as an order of laws and regulations is not recognized. It is not a series of public notice given under Article 24 of the Urban Development Act, Article 78(1) of the Public Works Act, Article 40(3)2 of the Enforcement Decree of the same Act, but a separate notice or public notice to establish a system for establishing relocation measures in advance of the base date through the implementation of the public works project. Thus, the Defendant’s explanation that the above provision should not be deemed as the basis for supporting the Defendant’s assertion and that the above provision should not be deemed as the “date of public works,” and it can not be seen as the “date of announcement of the Constitutional Court en banc Decision 200Hun-Ma62, supra.”

Thus, as of the date of the public announcement of the indemnity plan, all persons who acquired the housing within the project area of this case shall be designated as the subject of the relocation measures. Among them, the determination of whether the residents who acquired the housing within the project area prior to that date as of the base date of the relocation measures of this case and the residents who acquired the housing thereafter are subject to the relocation measures is unlawful as it violates Article 40(3) of the Enforcement Decree of the Public Works Act and is unlawful as it violates Article 40(3) of the same Act.

Nevertheless, the Defendant divided a person who is not a person subject to relocation measures based on the base date of the relocation measures of this case into those who are not a person subject to relocation measures, and thus, the disposition of this case was unlawful, apart from whether the Plaintiff constitutes a person subject to special supply of national housing, the disposition of this case is unlawful

3. Conclusion

The plaintiff's claim is justified, and the costs of lawsuit are assessed against the losing party.