Plaintiff (Attorney Cho Young-soo et al., Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm Multilater, Attorneys Woo-soo et al., Counsel for the plaintiff-appellant)

March 24, 2006

Ulsan District Court Decision 2005Guhap399 Decided July 20, 2005

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of removing the obstacles to the whole of the above ground buildings, etc. on December 30, 2004 by vicarious administrative execution against the plaintiff on December 30, 2004.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the arguments in each entry of Gap evidence 1-1, evidence 1-2, evidence 2-1, evidence 3, 4, 7, evidence 1-1, evidence 1-2, and evidence 1-2.

A. On December 23, 1988, the Plaintiff owned a 154-46 large scale 357 square meters in Ulsan-dong, Ulsan-dong. On December 30, 198, the land was divided into a 154-50 large scale 136 square meters (hereinafter “154-50 square meters”) from the said land, and on December 30, 1989, a subdivision registration was completed for the said 154-50 square meters.

B. On December 30, 1989, Ulsan City acquired the ownership of 154-50 land from the Plaintiff on the ground of a consultation on public land, and Ulsan City transferred its ownership to the “National Railroad” on the ground of donation on July 8, 1993.

C. On the ground of 154-46 and 154-50, Ulsan-gu, Ulsan-gu, the Plaintiff installed a building and other obstacles (hereinafter the building, etc. of this case) and occupied the above land. On December 30, 2004, the Defendant issued a disposition to force the Plaintiff to remove the above building, etc. within 10 days from the date of delivery, on the ground that the Plaintiff’s payment of compensation to the above building, etc. was caused by the failure to voluntarily remove the above building, etc. on several occasions, and thus, it would hinder the Defendant’s implementation of the project for dispersion of the west-gu, Nam-gu, Nam-gu, Seoul-gu, and to voluntarily remove the above building, etc. within 10 days from the date of delivery. In the event of failure, the Defendant issued a disposition to force the Plaintiff to execute the said project and collect the said expenses (hereinafter the disposition of this case).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since the land 154-46 in Ulsan-gu, Ulsan-do was currently owned by the plaintiff and was not incorporated into the railroad relocation project executed by the defendant, and the compensation for the building, etc. of this case on the ground of the 154-46 and 154-50 in Ulsan-dong, Ulsan-dong, was not completed, the plaintiff did not have any obligation to remove the building, etc. of this case. Even if the plaintiff had a duty to remove the building, etc. of this case, and even if the plaintiff had a duty to remove the building, etc. of this case by consultation, the defendant's obligation to remove the building, etc. of this case is merely a contractual duty, and is not a duty to remove the building, etc. of this case without any title. Thus, the disposition of this case, which the defendant directed the removal of the building, etc. of this case without any title, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts may be acknowledged by integrating the following facts in Gap evidence 4, Eul evidence 1-3 through 5, Eul evidence 3-1 through 6, Eul evidence 4, Eul evidence 5-1, and Eul evidence 5-2.

(1) The Plaintiff owned 4 houses and 2 houses registered in the general building ledger on the above land before the land was partitioned into Ulsan-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 154-46.

(2) The Ulsan-si intended to incorporate the area of 136 square meters out of 154-46 large scale of 357 square meters in Ulsan-dong, Ulsan-dong, Nam-dong, Ulsan-do, into the railroad site for the Ulsan-si Construction Project. The said land was divided into the area of 154-46 large scale 221 square meters in Ulsan-dong, Ulsan-dong, Ulsan-do, and the area of the said land was divided into the area of 154-50 square meters and the area of 156 square meters in size.

(3) Ulsan-si did not incorporate Ulsan-dong 154-46 large scale 221 square meters into the above business, but instead put the Plaintiff into the railroad site. The above 154-50 square meters and 136 square meters are to be incorporated into the above 154-46 square meters and to purchase all obstacles, such as housing, etc. on the 154-46 ground before the above 1989. The compensation for the above 154-50 on December 29, 1989 was 16,320,000 won, and the compensation for all obstacles, such as housing, etc. on the 154-46 ground before the division, 28,980,50,000 won, 7,328,720 won, 7,7208,000 won, 205,7526,207,207,2005.

(4) At the time of filing a claim against Ulsan City for compensation, the Plaintiff presented a written oath to comply with the demand without any objection to the removal of obstacles to Ulsan City on the date and time, etc. (hereinafter “instant pledge”).

(5) Ulsan-si selected the Plaintiff as a person subject to the relocation measures and ordered the Plaintiff to sell to the housing site the size of 1187-11 and 197.3 square meters in Ulsan-dong, Ulsan-do.

D. Determination

The Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter referred to as the "Act on the Acquisition of Land, etc.") was enacted, and the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor was repealed. Article 3 of the Addenda to the Act on the Compensation for Losses is a general transitional measure, which provides that "any disposition, procedure, and other acts performed under the previous Act, the Decree of the Land Expropriation Act and the Act on the Special Cases concerning the Acquisition of Land for Public Works and the Compensation for Losses shall be deemed to have been performed under the provisions of this Act at the time of the enforcement of this Act." According to Article 89 of the Act on the Public Works, where a person who is obliged to perform the above Act or the Act does not fulfill the obligations, he may apply for vicarious execution under the conditions as prescribed by the Administrative Vicarious Execution Act, and Article 28 of the Korea Rail Network Authority Act provides that the head of a local government may entrust the Corporation with the authority to perform vicarious execution under the provisions of Article 89 of the Act on the Acquisition of Land, etc. for Public Works and Security to be immediately executed by the administrative Agency.

In addition, in light of the circumstances where the Defendant urged the Plaintiff to remove the instant building, etc. several times, but the Plaintiff did not perform it, the Defendant is deemed to have a difficult reason to secure the performance of the removal obligation for the instant building without vicarious administrative execution. Moreover, leaving the instant building, etc. neglected is deemed to seriously undermine public interests in various aspects, such as interfering with the Defendant’s performance of duties, such as construction and management of railroad facilities. Therefore, the instant order disposition against the instant building, etc. made by the Defendant for the smooth progress of the instant railroad construction project being implemented by the Defendant is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with this conclusion is just, and the plaintiff's appeal is without merit, and it is so decided as per Disposition.

Judges Lee Young-tae (Presiding Judge)