[1] The criteria for payment of housing relocation expenses to housing tenants under Article 54(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] The case holding that a person who leased and resided in a house within the rearrangement zone for at least three months at the time when the project implementation authorization for the housing redevelopment project was publicly announced should pay housing relocation expenses to the person who relocated outside of the rearrangement zone by the implementation

[1] In full view of the legal nature and legislative intent of the relocation cost, the meaning of the language of the pertinent provision, balance with the commercial tenants, etc., it is reasonable to interpret that in the case of a housing redevelopment project, the tenants who have resided in the relevant rearrangement zone for not less than three months at the time of the public announcement of the authorization for project implementation,

[2] The case holding that a person who leased and resided in a house in the rearrangement zone for more than three months at the time of August 30, 2007, which is the date of public notice of project implementation authorization for a housing redevelopment project, and moved out of the rearrangement zone due to the implementation of the redevelopment project, should pay the relocation cost under Article 78 (5) of the Act on Acquisition of and Compensation for Land, etc. for

[1] Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 54(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 78(5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 54(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc.

Plaintiff

Seoul District Housing Redevelopment and Improvement Project Association (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

April 30, 2009

1. The defendant shall pay to the plaintiff 8,745,236 won with 5% interest per annum from January 7, 2009 to May 21, 2009, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is borne by the Plaintiff, and the remainder 70% is borne by the Defendant, respectively.

The defendant shall pay to the plaintiff 14,50,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. On June 18, 2003, the head of Eunpyeong-gu Seoul Metropolitan Government (hereinafter referred to as the “head of Eunpyeong-gu”) made a public announcement of the designation of the zone for housing redevelopment (hereinafter referred to as the “place for housing redevelopment”) with the content of designating the area for housing redevelopment as the area for housing redevelopment.

B. On December 29, 2005, the Mayor of Eunpyeong-gu Seoul Metropolitan Government (hereinafter “instant improvement zone”) designated a housing redevelopment project improvement zone of 663 square meters and 54,261.70 square meters (hereinafter “instant improvement zone”).

C. On May 12, 2006, the Defendant obtained authorization for establishment from the head of Eunpyeong-gu and implemented the housing redevelopment improvement project after obtaining authorization for project implementation on August 30, 2007.

D. Around June 2003, the Plaintiff leased the second floor of the housing of Eunpyeong-gu Seoul Metropolitan Government (number 1 omitted) 2 (hereinafter “instant housing”) located in the instant rearrangement zone to KRW 10 million, monthly rent of KRW 350,000,000, and completed the move-in report to the above domicile on July 26, 2003 with Nonparty 1, along with the Plaintiff’s wife Nonparty 1, the Plaintiff resided in the instant housing from that time, and moved to KRW 101 on August 12, 2008 due to the implementation of the instant project. Meanwhile, on June 5, 2008, the Plaintiff applied for the payment of housing relocation expenses to the Plaintiff and Nonparty 1 as his household member.

E. Around July 1, 2003, Nonparty 2 completed the move-in report to the domicile of the instant house, but, on the resident registration, Nonparty 2 became a separate household with the Plaintiff and Nonparty 1, his wife, and became a joint household on July 14, 2008.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 6, 7, Eul evidence Nos. 1, 2, and 4, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

The Plaintiff, from March 2005, resided with Nonparty 1 and Nonparty 2 by leasing the instant house, and resided with Nonparty 1 and Nonparty 2 on August 12, 2008 due to the implementation of the instant redevelopment project, is at least a person who resided in the instant rearrangement zone for at least three months at the time of August 30, 2007, which is the date of the public announcement of the authorization for the implementation of the instant redevelopment project. As such, the Defendant is obligated to pay to the Plaintiff KRW 14,50,000 as the housing relocation cost for three-person households pursuant to Article 78(5) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), and Article 54(2) of the Enforcement Rule of the same Act.

(2) The defendant's assertion

(1) The term “person who has resided in the redevelopment project zone at the time of the public announcement of project approval, etc. or the public announcement, etc. under the relevant Acts and subordinate statutes for public works” under Article 78 (5) of the Public Works Act and Article 54 (2) of the Enforcement Rule of the same Act refers to a person who has resided in the rearrangement project zone at the time of the public announcement of the designation of the rearrangement zone at the time of the public announcement of the public announcement of the designation of the rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”). As the Plaintiff was residing in the housing of this case after June 18, 2003, the date of the public announcement of the public inspection of this case, the Plaintiff does not constitute a person who has resided in the redevelopment project zone of this case for more than three months at the time of the public announcement of the public inspection of this case, and thus is not eligible

② Even if the Plaintiff is a person eligible for housing relocation expenses, Nonparty 2 cannot be deemed a member of the same household as the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. With respect to housing redevelopment projects under the Urban Improvement Act, the date of the payment criteria for housing relocation expenses for the tenants of housing.

According to the relevant provisions such as Article 40(1) and (2) of the Urban Improvement Act, Article 78(5) and (9) of the Public Works Act, and Article 54(2) of the Enforcement Rule of the Public Works Act, the project implementer shall compensate for the housing relocation expenses for tenants of housing who have been relocated due to the implementation of a housing redevelopment project and have resided in the relevant rearrangement project area for not less than three months at the time of the public announcement of the project approval or the public announcement under the relevant Acts and subordinate statutes for public works.

The cost of moving a residential building that moves to a tenant due to the implementation of public works has the nature of the amount of money paid from the social security level for tenants who will suffer special difficulties due to the policy purpose to facilitate the implementation of the project by encouraging the early moving of tenants residing in the relevant public works implementation zone and the relocation of their residence. Therefore, Article 54(2) of the Enforcement Rule of the Public Works Act provides that the tenant who is the tenant of a residential building that moves to a public works implementation zone at the time of the public works approval, etc. of the project approval or the announcement, etc. under the relevant Acts and subordinate statutes for the public works, shall be deemed to have acquired the right to claim the cost of moving a residential building under Article 54(2) of the Enforcement Rule of the Public Works Act from the date of the project approval, etc. to the date of notification of the cost of moving a residential building or the date of commencement of expropriation (see Supreme Court Decision 2006Du2435, Apr. 27, 2006).

In Article 54(2) of the Enforcement Rule of the Public Works Act, “the date of public inspection for the designation of a rearrangement zone at the early stage of public announcement or of public announcement under the relevant Acts and subordinate statutes” is deemed to include both “the time of public announcement of the project approval” and “the time of public announcement, etc. under the relevant Acts and subordinate statutes for public works” and “the time of public announcement, etc. under the relevant Acts and subordinate statutes for public works,” barring any special circumstance, it is reasonable to interpret that “the date of public inspection for the designation of a rearrangement zone at the early stage of public announcement under the relevant Acts and subordinate statutes for public works” and to interpret “the date of public announcement for the designation of a rearrangement zone at the time of public announcement

If the interpretation of the standard date of payment of housing relocation expenses for housing tenants is limited to the date of public inspection and public announcement for the designation of a rearrangement zone, there is room for the first legislative purpose to promote social security for tenants and facilitate the promotion of the project by encouraging early relocation. Furthermore, compared to the fact that the commercial tenants who operated their business prior to the public announcement date of the project approval, such as the public works project approval, are liable for operating compensation (Article 45 of the Enforcement Rule of the Public Works Act) or paying housing relocation expenses to housing owners included in the public works implementation zone without limit of residence period (Article 54(1) of the Enforcement Rule of the Public Works Act), it would result in applying more strict standards only for housing tenants, and in particular, as regards tenants of unauthorized buildings (proviso of Article 54(2) of the Public Works Act) who need to reside for more than one year from the standard date, it is questionable whether the basic date for the implementation of the housing redevelopment project is retroactive until it is clear.

In addition, even after the public inspection and announcement for the designation of a rearrangement zone, the rearrangement zone is likely to be partially expanded or reduced at the stage of the public announcement for the designation of a rearrangement zone, and there is room for considerable time to obtain the authorization for the implementation of a housing redevelopment project, such as obtaining the authorization for establishment with the consent of at least 3/4 of the owners of the land in the relevant rearrangement zone, etc., so it is difficult to conclude that the rearrangement zone has been determined by the public inspection announcement for the designation of a rearrangement zone,

Even in the above 206du2435 decision that held on the legal nature of the relocation cost, the court below's decision was justified in ordering the payment of the relocation cost to the tenants who have resided for more than three months as of the date of the public notice of the approval of the implementation plan corresponding to the date of the public notice of the public notice of the public notice of the implementation plan.

In full view of the legal nature and legislative purport of the relocation cost as seen above, meaning of the text of the relevant provision, balance with commercial tenants, etc., in the case of a housing redevelopment project, it is reasonable to interpret that the tenant who has resided in the relevant rearrangement zone for more than three months at the time of the public announcement of the authorization for the implementation of the housing redevelopment project

D. The duty to pay the relocation cost in the instant case

(1) Occurrence of payment obligation

According to the above legal principles and the facts of recognition, since the plaintiff resided with the non-party 1 as a tenant in the housing of this case, which is a residential building from July 26, 2003 as well as the plaintiff's father and non-party 1, and moved out of the rearrangement zone of this case due to the implementation of the redevelopment project of this case on August 12, 2008, the defendant is obligated to pay the expenses for moving the residence of two households and the damages for delay thereof to the plaintiff who resided as a tenant in the rearrangement zone of this case as of August 30, 2007, which is the date of the public announcement of the approval of the project implementation of this case. (On the other hand, the plaintiff is also a non-party 2-do household member, and there is no evidence to believe that the plaintiff and non-party 2 were the same household member, and therefore the plaintiff's above assertion is not accepted).

(2) Amount of the cost of moving a house

Residential relocation expenses 8,745,236 won = 2,186,309 won (the monthly average household expenditure expenses for workers in the 3/4 quarter of August 30, 2007, which falls under the project implementation authorization date of the instant project implementation authorization date), 4 months

(3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 8,745,236 won for moving expenses of two households and delay damages at the rate of 5% per annum from January 7, 2009 to May 21, 2009, which is the day following the delivery of a copy of the complaint of this case, under the Civil Act, and 20% per annum from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Han-soo (Presiding Judge)