[1] Whether an urban development project implementer has discretion to select those obligated to establish and implement relocation measures among those subject to relocation measures and determine housing sites, etc. to be supplied to them (affirmative)

[2] The case holding that an urban development project implementer has no error of law by deviating from or abusing discretion in the decision-making of an occupant right supplier based on the type and area of apartment to be supplied to a person who is obligated to establish and implement relocation measures in consideration of whether he/she has resided in the relevant housing until the date of conclusion of a contract for consultation or the decision of expropriation after determining the person subject to relocation measures as of the date of public announcement

[1] In light of the language, content, and legislative intent of Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 40(3)2 of the Enforcement Decree of the same Act, “the date of public notice, etc. under the relevant Acts and subordinate statutes for public projects” under Article 40(3)2 of the above Enforcement Decree is the standard for determining a person who is not a person subject to the relocation measures, but a person who shall establish and implement the relocation measures among those subject to the relocation measures and a person who shall pay the resettlement subsidies. Thus, a project operator may select a person who shall establish and implement the relocation measures among those subject to the relocation measures and supply the housing site or housing to them, and have discretion to set them, and thus, the criteria established by the project operator should be respected unless there is any special circumstance that it is objectively unreasonable or unreasonable.

[2] The case holding that an urban development project implementer selected a person obligated to establish and implement the relocation measures in consideration of whether he/she has continuously resided in the relevant housing until the date of concluding a contract for consultation or the ruling of expropriation after determining the person subject to the relocation measures as of the date of the public announcement of the indemnity plan, and there is no violation of law by deviating from or abusing discretion in the determination of the person subject to the right to move, based

[1] Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007); Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007); Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40(3)2 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 94Nu11279 delivered on October 12, 1995 (Gong1995Ha, 3795)

Plaintiff

E. E.S. (Attorneys Go Young-deok et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu5553 decided July 2, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007; hereinafter “Urban Development Act”), Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act”), and Article 40(3)2 of the Enforcement Decree of the Public Works Act, a project operator shall either 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/her base of livelihood as a result of the implementation of an urban development project (hereinafter “person subject to relocation measures”), but the owner of a building who has not resided in the relevant building from the date of public announcement, etc. under the relevant Act and subordinate statutes for public works to the date of conclusion or adjudication of expropriation. In full view of the language, content, legislative intent, etc. of each of the above provisions, it is unreasonable to determine the relocation measures for those who are not subject to relocation measures or those who are not subject to relocation measures as prescribed by the relevant Act and subordinate statutes.

According to the reasoning of the judgment below, the court below announced on October 23, 2002 before the Seoul Special Metropolitan City Mayor announced as the base date for the relocation measures of this case on November 20, 202 the plan for the development project of Eunpyeong New Town on October 23, 2002 through the press, and on November 25, 2002, the defendant and Seoul Special Metropolitan City Mayor who are the project implementer of the urban development project of this case announced the base date for the relocation measures of this case through daily newspapers for the purpose of preventing real estate speculation and disguised transfer as expected to take a long time for the designation of an urban development zone and development plan. The defendant acquired the housing within the project area of this case before the base date for the relocation measures of this case from 60 days to 60 days before the date of conclusion of the contract or the ruling of expropriation, and the plaintiff acquired the apartment house from 60 days to 60 days before the date of voluntary relocation measures to 60 days before the execution of the plan for relocation measures of this case.

Therefore, the criteria for the relocation measures of this case do not designate a person who is not the person subject to the relocation measures as of November 25, 2002, but rather determine the type and area of apartment to be supplied to the person subject to the relocation measures, taking into account the following factors: (a) whether the person who acquired the housing within the project area before the date of the public announcement of the indemnity plan is subject to the relocation measures; (b) whether the person who acquired the housing within the project area was voluntarily relocated from the consultation contract and voluntary migration; (c) whether the former household is homeless outside the project area; and (d) whether the time of acquiring the housing was before and after the date of the relocation measures of this case; and (e)

Therefore, the court below is justified in holding that the base date for the relocation measures of this case does not fall under the "date of public notice under the relevant Acts and subordinate statutes for public works" as stipulated in Article 40 (3) 2 of the Enforcement Decree of the Public Works Act, and that there was no illegality of deviation from or abuse of discretion in the disposition of this case conducted in accordance with the criteria for the relocation measures of this case, which discriminates in the area of the apartment unit for sale, and the residents

The court below did not err in the misapprehension of legal principles as to the person subject to relocation measures under the Public Works Act.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)