209Guhap35849 Revocation of Disposition of Disqualified for relocation measures

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National Park Management Corporation

October 30, 2009

November 27, 2009

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of excluding those subject to relocation measures against the plaintiff on August 18, 2009 shall be revoked.

1. Details of the disposition;

A. On June 15, 2005, pursuant to Article 15 of the Natural Parks Act (amended by Act No. 7678 of Aug. 4, 2005), the Minister of Environment decided and announced a change in the ○ National Park Planning (public notice of detailed items of existing buildings subject to steel) to remove 145 units of 55 households from among the existing buildings scattered in the ○○○○-dong, ○○○○○-dong, ○○○○○○-dong, ○○○○-dong, ○○○○-dong, ○○-dong, and to relocate them to the site where the complex was built in the collective facility district, and then announced a removal of the ○ National Park Planning by the Ministry of Environment under Article 19 (2) of the Natural Parks Act (amended by Act No. 8950 of Mar. 21, 2008).

B. On April 18, 2008, the Defendant announced that a plan should be formulated in accordance with the procedures and methods prescribed by this Act under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 9595, Apr. 1, 2009; hereinafter the same shall apply) with respect to buildings, etc. to be removed as part of the instant project zone, and announced that the buildings located in the instant project zone will be selected as a person subject to relocation measures on June 15, 2005, and that the buildings located in the instant project zone should be included in persons who inherited after June 15, 2005.

The notice of the second relocation measures that are the same as the notice of the first relocation measures (hereinafter referred to as the "public notice of the relocation measures of this case" in total of the above 1 and the second relocation measures).

C. On April 4, 2006, the Plaintiff purchased ○○○○○○○○○○ Dong, ○○○○○, located in the instant project zone, and changed the name of the owner on the construction water register, and filed an application with the Defendant for designation of one-lanes as one-lanes of relocation measures around January 2, 2009 and two-lanes of relocation measures around March 12, 2009. On August 18, 2009, the Defendant rendered a decision to exclude the Plaintiff from the person subject to relocation measures on the ground that he acquired the right of ownership on the instant building after the base date of the relocation measures, and notified the Plaintiff of the decision to exclude the Plaintiff from the person subject to relocation measures.

[Ground of recognition] Evidence No. 1-1, 2, 5-1, 2, 6-1, 2, and 7 of Evidence No. 1-1, 5-2, and 6-1, 7,

entry of Eul evidence 4-1, 2, 3, Eul evidence 6-1, 2, 4, 41, 42, 43, 44, 46, 52, and 53, respectively;

The purport of all pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The public announcement of the relocation measures of this case is null and void in that it sets the date of the decision and public announcement of the modification of the ○san National Park Planning as the base date of the relocation measures, not falling under the "date of the public announcement, 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 (amended by Presidential Decree No. 21445, Apr. 21, 2009; hereinafter the same shall apply), which is the basis of the relevant laws and regulations for the relocation measures, as the base date of the relocation measures, and the disposition of this case

(b) Related statutes;

Natural Parks Act (amended by Act No. 7678 of August 4, 2005)

Article 15 (Modification, etc. of Park Planning)

(1) The provisions of Articles 12 through 14 shall apply mutatis mutandis to alteration of park planning: Provided, That where minor matters prescribed by Presidential Decree are altered, the procedures provided for in Article 12 (2), 13 (2) or 14 (2) may be omitted.

Natural Parks Act (amended by Act No. 8950 of March 21, 2008)

Article 11 (Formulation, etc. of Basic Park Planning)

(1) The Minister of Environment shall formulate a basic park planning every ten years after undergoing deliberation of the National Park Committee.

Article 12 (Determination of National Park Planning)

(1) Park planning for national parks shall be determined by the Minister of Environment.

Article 15 (Modification, etc. of Park Planning)

(1) The provisions of Articles 12 through 14 shall apply mutatis mutandis to alteration of park planning: Provided, That where minor matters prescribed by Presidential Decree are altered, the procedures provided for in Article 12 (2), 13 (2) or 14 (2) may be omitted.

Article 16 (Public Announcement of Park Planning)

The park management agency shall, when it determines or alters a park planning under Articles 12 through 15, publish it under the conditions as prescribed by the Ordinance of the Ministry of Environment.

Article 19 (Implementation of Park Projects and Management of Park Facilities)

(2) Where a park project is implemented, the park management agency shall determine and publicly announce a park project implementation plan in accordance with standards prescribed by Ordinance of the Ministry of Environment.

Article 22 (Expropriation of Land, etc.)

(1) The park management agency may, when it is deemed necessary to implement a park project, expropriate or use the ownership and other rights over the land entering the park project and articles attached thereto.

(2) Except as otherwise provided for in this Act, the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor shall apply mutatis mutandis to the expropriation and use under paragraph (1). In such cases, when a park project execution plan is determined and publicly announced under Article 19 (2), it shall be deemed that the project has been approved under Article 20 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor and the public announcement of the project approval under Article 22 of the same Act, and an application for an adjudication shall be made within the project period fixed in the public project execution plan, notwithstanding

Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 9595 of April 1, 2009)

Article 78 (Formulation, etc. of Relocation Measures)

(1) Any project operator shall formulate relocation measures, as prescribed by Presidential Decree, for persons 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 relocation measures") or pay resettlement subsidies, as prescribed by Presidential Decree.

Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 21445, Apr. 21, 2009)

Article 40 (Formulation and Implementation of Relocation Measures)

(1) When a project operator intends to take the measures for resettlement under Article 78 (1) of the Act (hereinafter referred to as "measures for resettlement"), he/she shall notify a person subject to the measures for resettlement under the same paragraph (hereinafter referred to as "person subject to the measures for resettlement") of the details of the plan.

(3) Any person who falls under any of the following subparagraphs shall be excluded from those subject to relocation measures:

2. The owner of a building (the proviso omitted) who does not reside continuously in the building from the date of notification, etc. under the relevant Acts and subordinate statutes for the public works to the date of concluding the contract or the date of expropriation ruling; and

C. Determination

(1) According to Article 78(1) of the Public Works Act, a project operator shall establish and implement relocation measures or pay resettlement funds as prescribed by the Enforcement Decree of the Public Works Act for a person who is deprived of his base of livelihood due to the provision of residential buildings due to the implementation of public works (hereinafter referred to as a "person subject to relocation measures"), and Article 40(3)2 of the Enforcement Decree of the Public Works Act provides that the owner of a building who has not resided continuously until the date of conclusion of the contract or the date of the decision of expropriation on the basis of the "the date of the public works" shall, in principle, be excluded from the person subject to relocation measures. "The date of public announcement, etc. under Article 40(3)2 of the Enforcement Decree of the Public Works Act, which is the date of the relocation measures, is scheduled to apply mutatis mutandis the Land Expropriation Procedure, as well as the public announcement, etc. of the project approval in addition to the public announcement of the project approval under the relevant Act.

(2) According to the Natural Parks Act (amended by Act No. 8950, Mar. 21, 2008), which is the basis for the instant project, as to the instant case, the park management authority shall be deemed to have decided and publicly announced the implementation plan of the public project pursuant to the Public Works Act when it determines and publicly announced the implementation plan of the public project (Articles 19(2) and 22(2)), but prior to the determination and public notification of the implementation plan of the park project (Articles 11). The determination and public notification of the basic park plan (Articles 12 through 14), the alteration and public notification of the park plan (Article 15) of the Enforcement Decree of the National Parks Act (amended by the Act No. 8950, Mar. 21, 200), as well as the following circumstances, which are acknowledged by the evidence of the above recognition and the alteration and public notification of the plan to the extent that the above change and public notification of the plan is necessary to be made within the scope of the previous public notification and notification of the plan to the state of the housing.

(3) Accordingly, the instant disposition is lawful, excluding the Plaintiff from the person subject to the relocation measures, due to the fact that the Plaintiff acquired the instant building after the base date of the relocation measures.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges of the presiding judge 000

Judges OOOO.

Judges OOO -