2018Na2066037 Delivery of immovables

○○ Housing Redevelopment Project Association, Incheon ○○-gu

Song, Incheon ○○-gu

Incheon District Court Decision 2017Gahap57430 Decided October 2, 2018

March 20, 2019

April 17, 2019

1. The part against the defendant in the judgment of the first instance is revoked.

2. The plaintiff's claim against the defendant is dismissed.

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

1. Purport of claim

The defendant shall deliver to the plaintiff each real estate listed in 1.3 and 3.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. In order to carry out a housing redevelopment improvement project (hereinafter “instant project”) in the Incheon ○○-gu, including the land indicated in paragraph 1. Paragraph (1) of the indication of the attached real estate owned by the Defendant (hereinafter “instant land”) and the housing listed in paragraph 2. (hereinafter “instant housing”, the Plaintiff obtained authorization for the establishment of February 3, 2009 and completed the registration of the establishment on February 5, 2009.

B. On July 12, 2016, the head of the Incheon Metropolitan City ○○○○ Office approved the management and disposal plan concerning the instant project, and publicly announced it on July 13, 2016.

C. Although the Plaintiff agreed on compensation with the Defendant for the instant real estate, the Plaintiff filed an application for adjudication of expropriation with the competent Regional Land Expropriation Committee of Incheon Metropolitan City, which did not reach an agreement, and the said Expropriation Committee rendered an adjudication on May 18, 2017, stating the amount of compensation 313,456,630 won, and the date of commencement of expropriation as of July 12, 2017 (hereinafter “instant adjudication”).

D. On July 6, 2017, the Plaintiff deposited KRW 313,456,630 as the Defendant at the Incheon District Court Decision No. 5555 Decided July 6, 2017.

E. At present, the Defendant currently occupies each part of the attached property indicated in 3. Paragraph 3 of the indication of the attached property among the instant housing (hereinafter “the instant building part”), and collectively named with the instant land (hereinafter “instant claim part”).

[Ground of Recognition] Facts without dispute, entry of Gap evidence 1 through 11 (including each number if there are several numbers, unless otherwise specified) and the purport of the whole pleadings

2. Determination as to the cause of action

A. Relevant provisions

1) According to Article 81(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”), a right holder, etc. of the previous land or structure may not use or benefit from the previous land or structure when the approval of a management and disposal plan is publicly notified. However, the same shall not apply where a project operator’s consent or a compensation for losses under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Land Compensation Act”)

2) According to the main sentence of Article 65(1) of the Act on the Improvement of Urban Areas and Dwelling Conditions, the Land Compensation Act shall apply mutatis mutandis to expropriation or use of ownership and other rights of land or buildings for the implementation of a housing redevelopment improvement project within a housing redevelopment improvement zone, except as otherwise provided.

3) According to Articles 40(1), 40(2), and 45(1) of the Land Compensation Act, a project operator shall pay or deposit the compensation by the date of commencement of expropriation as determined by the competent Land Tribunal, and thereby acquire the ownership of the land or goods on the date of commencement of expropriation. According to Article 43 of the same Act, a landowner and a person holding a right to the land shall transfer the land or goods to the project operator by the date of commencement of expropriation.

B. Determination

According to the relevant provisions and the facts acknowledged earlier, the Plaintiff acquired the ownership of the instant real estate by depositing compensation for the instant real estate prior to the commencement date of expropriation as determined by the instant ruling. Therefore, the Defendant is obligated to deliver the instant claim portion possessed by the Plaintiff, the owner of the instant real estate and the project implementer, barring special circumstances.

3. Judgment on the defendant's assertion or defense

A. As to the assertion regarding unfair low-evaluation or administrative litigation on the instant adjudication

1) The defendant's assertion

Since it is difficult to maintain the current status and horizontal movement solely with compensation received by the Defendant due to an unreasonably low appraisal of the instant real estate, the Plaintiff should allow the Defendant to secure a realistic period of director. Moreover, as administrative litigation is pending between the Plaintiff and the Defendant on the instant judgment, the compensation procedure has not been completed.

2) Determination

The reason why the compensation for the instant real estate is low-evaluation and the director is difficult to be a director, or the real director's period is needed cannot be a legal defense to block the Plaintiff's claim in the instant case, and the procedure of accepting the instant real estate is not suspended as an institution of administrative litigation on the instant judgment. Therefore, the Defendant's above assertion is without merit.

B. With respect to resettlement funds, residential relocation expenses, preference of directors' expenses, or simultaneous performance defenses

1) Defendant’s defense

Since the Plaintiff’s obligation to pay resettlement funds, housing relocation expenses, and director expenses to the Defendant is a preferential or simultaneous performance relationship compared to the Defendant’s obligation to deliver the claim portion of this case against the Plaintiff, the Defendant may refuse to deliver the claim portion of this case until the Plaintiff is paid resettlement funds, housing relocation expenses, and director expenses.

2) Relevant legal principles

Article 65 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents; Article 73 of the same Act; Articles 60 and 65(1) of the same Act; Article 78(1) and (5) of the same Act; Article 41 of the Enforcement Decree of the same Act; Articles 53(2), 54(1) and 73 of the Enforcement Decree of the same Act; Articles 60, 63 and 65(1) of the Enforcement Decree of the same Act; Article 65(2) of the same Act; Article 14 of the same Act provides that a person subject to settlement due to the implementation of a housing redevelopment project shall be compensated for losses under Article 65 of the Act on the Maintenance of Urban Areas and Dwelling Conditions; Article 75 of the same Act; Article 14 of the same Act provides that the person subject to settlement shall be compensated for 30 percent of the appraised value of residential buildings paid in lieu of the relocation measures; Article 28(1) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents; Article 18(2) provides that the same Act shall apply mutatis mutandis apply.

3) Determination

According to the facts and relevant legal principles as seen earlier, the obligation to pay resettlement funds, housing relocation expenses, and director expenses to the defendant, who is a person subject to cash settlement of the plaintiff's business in this case, is required to complete prior to the suspension of the defendant's use and profit-making. Thus, the defendant's defense is more effective than that of the defendant's obligation to deliver the claim in this case. Thus, unless the plaintiff asserts and prove that the plaintiff fulfilled the obligation to pay resettlement funds, housing relocation expenses, and director expenses, the defendant's defense is reasonable (the plaintiff does not pay resettlement funds, housing relocation expenses, and director expenses because the defendant did not claim relocation funds, housing relocation expenses, and director expenses. However, the plaintiff's relocation funds, housing relocation expenses, and director expenses can be calculated simply pursuant to Article 53 (2), the main sentence of Article 54 (1), Article 54 (3), and Article 55 (2) of the Enforcement Rule of the Land Compensation Act, so if the plaintiff wants to pay them to the defendant, it is difficult to accept the above assertion in the legislative purport of the Urban Improvement Act and Land Compensation Act.

4 Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim against the defendant is dismissed as per Disposition.

Judge Yellow-Jil of the presiding judge

Judges Full Order

Judges Calopic