[1] In a case where the owner of a building permitted or reported for non-residential purposes uses the building for non-residential purposes for non-residential purposes without following lawful procedures at the time of incorporation into a zone where public works are performed, whether the building is included in the “unauthorized building, etc.” under the proviso of Article 54(1) of the former Enforcement Rule of the Act on the Acquisition of Land,

[2] The case affirming the judgment below rejecting Gap's assertion that the court's appraisal was unfair, in a case where the amount of compensation for losses for the remaining portion of Gap's land and building incorporated into a project zone following the implementation of public works is at issue, on the ground that the remaining portion of the compensation for losses is not calculated in consideration of the profits adjacent to the road constructed by the public works

[1] Article 78(5) and (9) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201); Articles 24 and 54(1) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 427, Jan. 2, 2012) / [2] Article 66 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 2011)

Plaintiff

Korea Land and Housing Corporation (Law Firm Filiwon, Attorneys Choi Jung-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu19863 decided December 7, 2012

The part of the lower judgment regarding the claim for housing relocation expenses is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the claim for housing relocation expenses

Article 78(5) and (9) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 2011; hereinafter “Public Works Act”) provides that residents of residential buildings shall be compensated by calculating and compensating expenses incurred in moving their residence and expenses incurred in transporting movable property, such as household tools, and compensation therefor shall be based on the standards prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs. Articles 24 and 54(1) of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by the Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012; hereinafter “Enforcement Rule of the Public Works Act”) provide that the owners of residential buildings to be incorporated into a zone where public works are performed shall compensate for relocation expenses for the building, but the building does not provide compensation for relocation expenses without obtaining a building permit or reporting pursuant to relevant Acts and subordinate statutes, such as the Building Act.

In full view of the language, contents, legislative intent, etc. of the above provisions, if the owner of a building already permitted or reported for non-residential purposes is using the purpose of residence at his/her own discretion without following due process such as obtaining permission or filing a report at the time of incorporation into a zone where public works are performed, it is reasonable to interpret that the building is included in “unauthorized building, etc.” under the proviso to Article 54(1) of the Enforcement Rule of the Public Works Act,

According to the facts duly confirmed by the court below, ① the recognition and public notice of the business of this case was made on July 10, 2009, and accordingly part of the land and the building of this case owned by the plaintiff was incorporated into the business of this case, and ② the use on the second floor of the building of this case was a detached house from November 16, 192 to June 19, 2005, but the second floor of the building of this case was a detached house from June 20, 2005 to August 20, 2009, but it was re-converted into a detached house on August 21, 2009.

Examining these facts in light of the aforementioned provisions and legal principles, the second floor of the instant building is “Class II neighborhood living facilities (offices)” and its use on July 10, 2009, when incorporated into the instant project implementation district, and thus, it cannot be said that it constitutes “unauthorized buildings, etc.” under the proviso of Article 54(1) of the Enforcement Rule of the Public Works Act, and thus, it constitutes “unauthorized buildings, etc.” subject to compensation for housing relocation expenses.

Unlike the above, the court below held that the second floor of the building of this case constitutes "residential building" under the main text of Article 54 (1) of the Enforcement Rule of the Public Works Act and "the Enforcement Rule of the Public Works Act" and "the Enforcement Rule of the Act on Public Works Projects" and "the Enforcement Rule of the Public Works Projects" are subject to compensation for housing relocation costs, and thus, the judgment below affected the conclusion of the judgment by misunderstanding the legal principles as to "residential building" as "residential building" as "the compensation for housing relocation costs" under Article 54 (1) of the Enforcement Rule of the Public Works Act. The ground of appeal assigning this error is with merit.

Therefore, the part of the judgment of the court below on the claim for the cost of moving a house cannot be reversed without examining the remaining grounds of appeal as to that part.

2. As to the ground of appeal on the claim for depreciation compensation for remaining land

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the court's appraisal of the remaining land of this case is unfair, which is not considered in spite of price increase factors due to the expansion of the road according to the project of this case.

Even if the remaining land in this case enjoys a benefit that is 20 meters wide from the road established under the project in this case, such benefit cannot be offset against the loss due to the legal effect of the expropriation itself (see, e.g., Supreme Court Decisions 97Nu1375, Sept. 18, 198; 99Du6439, Feb. 25, 2000). Therefore, the court below's determination to the same purport is correct, and there is no violation of law as otherwise alleged in the grounds of appeal. This part of the grounds of appeal cannot be accepted.

3. Conclusion

Therefore, the part of the judgment of the court below concerning the claim for housing relocation expenses is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)