The case holding that the above disposition is lawful in case where Gap applied for the supply of a re-resident housing site in accordance with the land compensation plan and public notice for the implementation of the Daegu Molole Industrial Complex development project, but the Korea Land and Housing Corporation, who is a project operator, was excluded from the person subject to relocation measures on the ground that Gap is disqualified, although Gap applied for the supply of a re-resident housing site without obtaining a construction permit and approval for use as a manager for the management of livestock pens as at the time of construction;

In a case where Gap, as a manager for managing livestock pens at the time of construction, changed a building permit and approval for use to a residential purpose without obtaining permission for change under Article 5 (1) of the former Building Act (amended by Act No. 4381 of May 31, 191), applied for the supply of a re-resident housing site pursuant to the land compensation plan and public notice for the implementation of the development project of Daegu Technolololol National Industrial Complex, but the Korea Land and Housing Corporation notified Gap to be excluded from relocation measures on the ground that he is disqualified, the case holding that the construction of the building without obtaining permission or public notice for change to the residential structure of the building at the time of construction should not be seen as lawful in light of the purport and purport of the above construction permission or the purport of the construction permission or the purport of the above change to the residential structure of the building at the time of construction without obtaining permission for change from the administrative agency.

Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 40(3)1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 20722 of Feb. 29, 2008)

[Judgment of the court below]

Korea Land and Housing Corporation (Attorney Nam-jin, Counsel for defendant-appellee)

Daegu District Court Decision 2010Guhap3208 Decided July 27, 2011

December 16, 2011

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of excluding those subject to supply of migrants' housing site to the plaintiff on July 22, 2010 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is the owner of a pipe, block structure 164.64 square meters and pipes, and 74.61 square meters of a block structure manager (the actual size of a manager 92 square meters and double managers hereinafter “instant building”) on one floor on the ground surface of Gain-ri (number 1 omitted) in Daegu-gun, Daegu-gun, Daegu-gun (hereinafter “instant building”).

B. On December 29, 2006, the Daegu Metropolitan City Mayor issued a public notice of the designation (development plan No. 2006-286 of the Daegu Metropolitan City public notice) of the total area of 7,270,557 square meters in Daegu-gun, Daegu-si, including the instant building, as a Daegu-si Local Industrial Complex (Seoul Metropolitan City public notice No. 2006-286 of the Daegu Metropolitan City public notice). On December 24, 2007, the Daegu-si Metropolitan City Mayor approved the alteration of designation (development plan) and implementation plan with the content that the project implementer changes the Defendant (Public notice No. 2007-220).

C. On April 23, 2008, the Defendant: (a) as a project implementer, published and published a land compensation plan and an inspection announcement for the Daegu Lololole General Industrial Complex; (b) established relocation measures (hereinafter “instant relocation measures”); (c) pursuant to the following selection criteria (the second criteria of “legal unauthorized building standards”) for those who lose their means of livelihood due to the implementation of the project; and (d) pursuant to the second criteria (the second criteria of “building standards”) to determine persons subject to relocation measures (hereinafter “the instant criteria”).

A person (other than an unauthorized building owner, corporation, or organization) who had owned and resided in a house lawfully from before the date of the [Selection Criteria] Before the date of the commencement of the contract or the ruling of expropriation until the date of the contract or the ruling of expropriation (Provided, That the same shall apply in cases where permission (report) is required) to compensate for losses, and who has moved to the house after receiving compensation for losses (excluding an unauthorized building owner, corporation, or organization after January 25, 1989) - - a building completed before January 24, 1989 - a building constructed before January 25, 1989 or less than two stories constructed within the period from January 25, 198 to June 8, 198, or a building with a total floor area of less than 20 square meters (in cases where permission for diversion of farmland, forest, etc.

D. Accordingly, the Plaintiff filed an application for the supply of the instant building site to the Defendant on the ground that he/she is the owner and resident of the instant building, but the Defendant notified the Plaintiff of July 22, 2010 on the ground that he/she is disqualified for the Plaintiff’s relocation measures (hereinafter “instant disposition”).

E. The Plaintiff raised an objection against the Defendant on August 23, 2010, however, received the Defendant’s notice of disqualification on the ground that “the manager cannot be deemed a residential building.” Meanwhile, on September 29 of the same year, the Plaintiff filed an appeal on September 29 of the same year, but the Central Administrative Appeals Commission dismissed the appeal on July 12, 201.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 6, Eul evidence 12, 13, and 14 (each number includes each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

Although the Plaintiff is a person subject to relocation measures for the following reasons, the instant disposition should be revoked as unlawful.

(A) Even if the building structure of the instant building was modified without obtaining any construction permit (report), it constitutes “a building below the second floor constructed within the period from January 25, 1989 to June 8, 198, which is the “standard for building below the second floor” as stipulated by the Defendant’s relocation measures.

(B) Furthermore, a manager management purpose is to manage a stable, but is also not concurrently in the nature of residence, and the Plaintiff currently uses the instant building as a residential building.

(2) Summary of the defendant's assertion

The instant disposition that the Plaintiff did not become a person subject to relocation measures for the following reasons is lawful.

(A) The instant building was a pipe structure, block structure, and the size was 74.61 square meters at the time of obtaining the instant building permit. However, according to the confirmation in the field investigation on April 7, 2008, since not only the purpose of use was changed, but also the area was extended to 92 square meters, the Plaintiff failed to implement the procedure for permission for alteration (or report) in accordance with Article 5(1) of the former Building Act (amended by Act No. 4381, May 31, 191; hereinafter “former Building Act”).

1) Therefore, the Plaintiff is excluded from a person subject to relocation measures, including “the owner of a building constructed without obtaining permission or filing a report,” under Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”) and Article 40(3)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20722, Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”).

2) Furthermore, the relocation measures of this case determined by the Defendant have been embodied in the provisions of the former Public Works Act and the Enforcement Decree of the same Act. Thus, even if there is no content as to whether the building permit (report) is necessary in the building standards of the second and lower floors as determined by the Defendant, such fact alone cannot be deemed to have expanded the person subject

(B) In light of the fact that entry in the public record is made on the premise of an application by the owner of the building, and thus, it can be the most objective proof of actual usage status, the pertinent building, which is registered as a manager in the public record, may not be deemed as a residential building.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Facts of recognition

(A) On January 10, 192, the Plaintiff’s father Nonparty 1 constructed a pipe and block structure “a stable” 164.64 square meters on the ground of the Daegu-gun Doil-si, Daegu-gun, Daegu-gun, and constructed a 74.61 square meters of the instant building, which is the instant building, to manage it, and obtained a construction permit and approval for use from the head of the Gun to achieve the building.

(B) Meanwhile, while Nonparty 1 was owned by inheritance on July 2, 1973, the land and the housing on the land adjacent to the Daegu-gun District, the land was acquired on May 29, 1981, Nonparty 1 removed the above ground on October 2, 1992, and newly constructed a cement brick structure and a 39.9 square meters of the cement brick structure, a cement brick structure slves slives slives slives slives slives house (hereinafter “non-party 1’s housing”) on the land of the above two lots.

(C) Unlike the entry in the public record, the instant building has three rooms, one room, one room, one room, one room for multi-use, and one bath room inside the building, so that the actual area of the building can be sufficient for people to live in the area of 92 square meters. In addition, it is difficult to find out at any time when the structure has been altered due to the expansion of the area. Moreover, in relation to the structural alteration, Nonparty 1 or the Plaintiff did not perform the procedure for permission for alteration (report), such as obtaining permission from the head of the Gun to be achieved.

(D) The Plaintiff was a move-in report to the housing address of Nonparty 1, and thereafter made a move-in report to the address of the instant building since November 19, 191.

(E) Nonparty 3 and 4, including Nonparty 2 (born on November 9, 1991), who is the Plaintiff’s children, entered the instant building and the Daegu ○ Elementary School near Nonparty 1, and graduated after six years.

(F) The plaintiff and the wife non-party 5 live together with a farmer, and the plaintiff joined the livestock industry cooperative on December 27, 1991 as a member of the livestock industry cooperative on December 27, 1991, and the non-party 5 was selected as a succeeding farmer in the business start-up in 197.

(G) On March 14, 2001, the Plaintiff donated the instant building to Nonparty 1, and completed the registration of ownership transfer in its name on the 19th day of the same month.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, 5, 6, 8, 9, 15, 16, Gap evidence Nos. 18 through 23, Eul evidence Nos. 7, 8, 14, and 15, and the purport of the whole pleadings

(2) Whether the instant building constitutes “the building standard of not more than the second floor” as stipulated by the relocation measures of this case

(A) As seen earlier, Article 6 of the Addenda to the Enforcement Decree of the former Public Works Act includes all buildings completed before January 24, 1989 as a person subject to relocation measures. Article 40(3)1 of the Enforcement Decree of the same Act provides that the owner of a building constructed without obtaining permission or filing a report, shall be excluded from the person subject to relocation measures. According to the criteria for the selection of the relocation measures of this case prescribed by the Defendant, the term “building constructed before January 24, 1984,” which is the first standard among the “building constructed before January 24, 1984,” which is the second standard, is consistent with the Enforcement Decree. However, the second standard for “building below the second floor” is only the building of less than the second floor or the total floor area of less than 20 square meters constructed within the period from January 25, 198 to June 8, 198, and there is no indication as to the construction permission or the construction report.

(B) As to this, the Defendant asserts that “the building standards for the second and lower floors” refer to a building other than those stipulated in Article 5(1) of the former Building Act, i.e., a residential building that does not require a building permit. On the contrary, the Plaintiff asserts that “the building standards for the second and lower floors” expanded the scope of the person subject to relocation measures. Therefore, the issue of the instant case is whether the instant building constitutes “the building standards for the second and lower floors” (the building should be a residential building that complies with a building permit or reporting procedure

(C) In light of the relevant laws and regulations as seen earlier and the contents of the relocation measures of this case, “building standards of 2 or less floors” are one of the criteria for the selection of the relocation measures of this case as determined by the Defendant. Thus, this is a provision embodying Article 40(3) of the former Enforcement Decree of the Public Works Act, which is a provision regarding relocation measures. ② Article 40(3) of the former Enforcement Decree of the Public Works Act excludes a building from the subject of relocation measures, which is constructed without obtaining permission or filing a report, or filing a report. ③ Nevertheless, Article 40(3)1 of the former Enforcement Decree of the Public Works Act does not include a building which is not subject to construction permission or filing a report in a “building standards of 2 or less floors,” and Article 40(1)1 of the former Enforcement Decree of the Public Works Act, which is not subject to construction permission or filing a report in accordance with the public service law, even if the building is not subject to construction permission or filing a report in accordance with the public service law.

(D) Therefore, as seen earlier, even if Nonparty 1 obtained a building permit and approval for use from the head of the Gun to a manager, the area of which is 74.61 square meters at the time of construction of the instant building, inasmuch as Nonparty 1 or the Plaintiff arbitrarily changed the use of the instant building without following legitimate procedures, such as expanding the area and modifying the structure to use the instant building for residential purposes, but failing to comply with the permission or reporting procedure under the Building Act and subordinate statutes from the head of the Gun having achieved the purpose of residence, it shall not be deemed that the instant building does not constitute “the building standard for the second and lower floors” as determined by the Defendant, and thus, the Plaintiff

(E) Even if the Defendant’s “building standards for the second and lower floors” established by the Defendant for relocation measures expanded the scope of a person subject to relocation measures as alleged by the Plaintiff, insofar as setting the scope of the person subject to relocation measures falls under the project operator’s discretion, it may be denied the validity of relocation measures if there are other special circumstances deemed objectively unreasonable or unreasonable (see, e.g., Supreme Court Decisions 2004Du8392, Dec. 10, 2004; 2009Du9819, Sept. 24, 2009). In this case, the “building standards for the second and lower floors” as determined by the Defendant is a provision embodying Article 40(3) of the former Enforcement Decree of the Public Works Act, which is a provision for relocation measures, but is also included in all buildings that did not grant a building permit or report, and thus, the building should not be objectively construed as the “building standards for the second and lower floors” or as the “building standards for the second and lower floors.”

In other words, Nonparty 1 had already owned a building site and a house on the land of Daegu-gun (number 2 omitted) at the time when the building of this case was constructed, and thus, barring special circumstances where other residential buildings are needed, the actual purpose of the building of this case seems to be “the manager,” rather than “the residence,” for the management of “the stable.”

2) However, “a manager” generally recognizes a place where a livestock raiser temporarily resides in order to manage livestock pens in the vicinity, and thus, even if the instant building was used for residential purposes, if it is difficult to distinguish between the place of temporary residence and the place of temporary residence, and if it is interpreted that all of the “a manager” is included in a building subject to relocation measures, it should be interpreted that the relocation measures should be established in cases where the “a manager” exists in compensation for livestock farming business while implementing the public project. However, such interpretation contradicts the nature of relocation measures, which is compensation for loss

3) On the other hand, the interpretation that the livestock industry does not belong to a building subject to relocation measures is also contrary to the nature of relocation measures, which is compensation for loss of living basis.

4) As to such problems, it is reasonable to clarify the criteria for distinguishing residential areas and temporary residential areas, and to select a person subject to relocation measures based on the usage recorded in the public register as a requirement consistent with the nature of the relocation measures, based on whether permission or reporting procedures are implemented. Furthermore, it is difficult to deem that the method of selecting a person subject to relocation measures based on the principle of usage recorded in the public register is unlawful as a project operator’s exercise of discretion (see Supreme Court Decision 2009Du23709, Mar. 25, 2010).

(F) Therefore, the Defendant’s disposition of this case, excluding the Plaintiff from the person subject to relocation measures, is legitimate, and the Plaintiff’s assertion contrary thereto is without merit as to whether the instant building constitutes a residential building.

3. Conclusion

The plaintiff's claim of this case shall be dismissed due to the lack of reason. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's claim of this case shall be revoked and dismissed.

[Attachment] Relevant Statutes: omitted

Judges Kim Chang-sung (Presiding Judge) Kim Jong-sung free of charge