[1] Article 40(3)1 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects provides that “the owner of a building constructed without obtaining a building permit or filing a report, which shall be constructed after obtaining a permit or filing a report” includes a person who uses a building for non-residential purposes, which has already been permitted or reported for non-residential purposes, for non-residential purposes without legitimate procedures (affirmative)

[2] In a case where the deep-sea market, the operator of the second stage site development project for the Korean International Exhibition Complex, and the owner of the building building for the first floor steel framed incorporated within the business district, were not the person subject to the relocation measures, and thus making a rejection disposition by replying to the purport that the relocation measures are impossible, the case holding that the judgment below erred in the misapprehension of legal principles, even though Gap should be excluded from the person subject to the relocation measures under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] The relocation measures system under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) is a system established by active and political consideration of the State as part of the so-called living compensation in order to restore the previous living conditions to the person who is deprived of his/her base of livelihood due to the implementation of a public work project to the original state, and at the same time, as part of the living compensation in order to guarantee a living worthy of human dignity, and there are factors of living compensation following the removal of residential buildings for which no separate compensation is provided except for compensation for losses to buildings and appurtenances. In addition, considering the language, contents, legislative intent, etc. of Article 78(1) of the Public Works Act and Article 40(3)1 of the Enforcement Decree of the Public Works Act, even if a person is a person who already owns a building for non-residential purposes and has already been permitted or reported for non-residential purposes, it is reasonable to interpret that a person who arbitrarily changes the purpose of use to a residential purpose without following legitimate procedures such as obtaining permission or filing a report at the time of relocation.

[2] The case holding that the court below erred by misapprehending legal principles on the ground that, in case where the second stage site development project operator of the Korean International Exhibition Site development project, the high-sea market, and the owner of the building built without obtaining permission or filing a report or filing a report on construction, and thus, Gap's application for the selection of the person subject to relocation measures is not subject to relocation measures, and thus Gap newly constructed the building with permission for non-residential use (house or multi-family housing), and registered the building as warehouse in the building ledger as a new warehouse (agricultural purpose) and owned or used the building for non-residential purpose without due process, since it is a person who owns or uses the building for non-residential purpose at his own discretion without due process, it constitutes "the owner of the building constructed without obtaining permission or filing a report or filing a report on construction" under Article 40 (3) 1 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

[1] Article 40 (3) 1 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 78 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 40 (3) 1 of the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff (Attorney Lee Sung-hwan et al., Counsel for plaintiff-appellant)

Goyang market (Law Firm TelviS, Attorneys Lee Jae-in et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu11520 decided November 3, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to Article 78(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) and Article 40(3)1 of the Enforcement Decree of the Public Works Act, a project operator shall either establish and implement relocation measures or pay resettlement funds to a person who is deprived of his/her base of livelihood as a result of providing residential buildings due to the implementation of public works (hereinafter “person subject to relocation measures”), as prescribed by the Enforcement Decree of the Public Works Act, but the owner of a building constructed without obtaining permission or filing a report for the building to be constructed after obtaining permission or filing a report shall be excluded from the person subject to relocation measures.

In full view of the language, content, legislative intent, etc. of the aforementioned provisions, even if a person who owns a building already permitted or reported for non-residential purposes, without following legitimate procedures, such as obtaining permission for or filing a report on a building for non-residential purposes as at the time of the base date of relocation measures, and using the building for non-residential purposes by arbitrarily changing its purpose without following due process, is reasonable to interpret Article 40(3)1 of the Enforcement Decree of the Public Works Act as being included in “the owner of a building constructed without obtaining permission for or filing a report on a building required to be permitted or constructed without obtaining permission for or filing a report on a building,” under Article 40(3)1 of the Enforcement Decree of the Public Works Act.

2. According to the reasoning of the lower judgment and the record, the Defendant, as the implementer of the instant project on August 24, 2006 (the second phase site development project for the Korean International Exhibition), announced the relocation plan as of June 23, 2006, which was the date of the public inspection and notification of the said project. The Plaintiff newly constructed the first floor steel structure warehouse 99mm2 (hereinafter “the instant building”) on the ground of the Goyang-gu dialogue-dong (hereinafter omitted) located in the instant project district and obtained the approval for use on July 26, 200. The purpose of the instant building is registered in the building ledger as warehouse from the date of the above approval for use until the date of the above approval for use, and the Plaintiff completed the relocation report as of September 23, 200, which was the date of the said relocation plan (the date of June 23, 2006) and resided with his family.

3. Examining the above facts in light of the legal principles as seen earlier, since the Plaintiff newly constructed the instant building with a building permit for non-residential purposes (non-residential housing or multi-family housing) and registered it as warehouse facilities in the building ledger, and owned and used the instant building for non-residential purposes at will without due process and without due process, it constitutes “the owner of a building constructed without obtaining a building permit or filing a report, and without obtaining a permit or filing a report,” under Article 40(3)1 of the Enforcement Decree of the Public Works Act, and thus, should be deemed excluded from the person subject to relocation measures under the Public Works Act.

Nevertheless, the lower court determined otherwise, that the instant building constitutes a “residential building” under Article 78(1) of the Public Works Act regardless of its registered purpose, and even if the Plaintiff used the instant building for residential purpose in the warehouse, it cannot be deemed that it constitutes a “owner of a building constructed without obtaining permission or filing a report” under Article 40(3)1 of the Enforcement Decree of the Public Works Act. In so doing, the lower court erred by misapprehending the legal doctrine on a person subject to relocation measures under the Public Works Act and the Enforcement Decree of the Public Works Act, and it is obvious that such illegality has influenced the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)