[1] In a case where the Minister of Construction and Transportation is obligated to establish the relocation measures under the old Public Service and Compensation for Losses, entrusts the affairs to the head of the competent local government, and the head of the local government re-entrusted the affairs to the head of the subordinate local government under his jurisdiction

[2] Whether a person selected as a person subject to the relocation measures under Article 8 (1) of the former Act on the Compensation for Public Loss and Compensation for Losses of Loss has legal interest in obtaining notification of the scheduled sale of the land of the housing site and seeking confirmation of invalidity of the

[3] The case holding that it cannot be deemed that the principle of good faith or the principle of opposite speech that a person who took a juristic act in violation of the former Enforcement Decree of the Act on the Costs of Relocation Measures for Public Use and Compensation for Loss, asserts that the person who took a juristic act would not be null

[4] The institutional purport of the "Measures for Resettlement of Public Loss" under Article 8 (1) of the former Act on Compensation for Public Loss

[5] In a case where a housing site is developed and supplied individually in the resettlement area as a countermeasure for the relocation of the former Public Loss Compensation Act, whether the cost of installing public facilities, etc. in the resettlement area may be borne by the migrants under the agreement of the parties (negative)

[1] In light of the relevant provisions of Article 6(1) of the Government Organization Act, Article 8(4) of the former Special Act on the Compensation for Public Loss (repealed by Act No. 6656, Feb. 4, 2002) and Article 6 of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (repealed by Presidential Decree No. 17854, Dec. 30, 2002), the entrustment and re-entrustment of the affairs of purchase of land, etc. for migrants and establishment of relocation measures (hereinafter referred to as the "settlement measures affairs") shall be deemed to fall under the entrustment of the affairs to the head of the competent local government and the subordinate local government under its jurisdiction, which is not the local government under its jurisdiction or the subordinate local government under its jurisdiction, not the truster, but the head of the local government under its jurisdiction or the head of the local government under its jurisdiction, which is the head of the local government under its jurisdiction, who is the head of the Ministry of Construction and Transportation, shall not be deemed to fall under the subject of rights and duties due to relocation measures.

[2] The relocation measures under Article 8 of the former Special Act on the Compensation for Loss of Public Works (repealed by Act No. 6656 of Feb. 4, 2002) is recognized as the right to apply for special supply to those who cooperate in the public project, and if the project implementer establishes a specific plan on the relocation measures and notifies or announces the plan to those who cooperate in the public project, applies for the selection of the person subject to the relocation measures in accordance with the procedures prescribed in the relocation measures, and if the project implementer is confirmed and decided as the person subject to the relocation measures, the specific right to purchase will occur. Therefore, even if the person selected as the person subject to the relocation measures did not make an application for the sale of the housing site in accordance with the notification of the scheduled sale plan and the announcement of sale plan, there is a legal interest to seek nullification of the above supply conditions in order to resolve legal instability, if the person fails to comply with the contract for sale.

[3] The case holding that it cannot be said that a person who took a legal act in violation of the former Enforcement Decree of the Act on the Costs of Relocation Measures for Public Use (repealed by Act No. 6656 of Feb. 4, 2002) asserts that the person who took a legal act in violation of the former Enforcement Decree of the Act on the Costs of Relocation Measures for Residents cannot be deemed as violating the principle

[4] Article 8 (1) of the former Special Act on the Compensation for Public Loss (repealed by Act No. 6656 of Feb. 4, 2002) provides that "the project implementer shall take measures for resettlement as prescribed by the Presidential Decree for those who would lose their base of livelihood due to the provision of land, etc. necessary for the implementation of public projects (hereinafter referred to as "resettleds")." The measures for resettlement under the Special Act on the Settlement of Residents are established for those migrants who would lose their base of livelihood due to the provision of land, etc. necessary for the implementation of public projects, or for those migrants who would be deprived of their base of livelihood due to the provision of land, etc. necessary for the implementation of the public projects, and individually supply "the cost of input" to the migrants under the burden of only the cost of input". The original purpose of the special Act is to restore the previous living condition to the original state of the migrants and at the same time guarantee their living worthy of human dignity.

[5] Article 5 (1) of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (repealed by Presidential Decree No. 17854, Dec. 30, 2002) provides that "the details of the relocation measures established pursuant to Article 8 (1) of the Act shall include the basic living facilities according to the relevant local conditions, such as roads, water supply and drainage facilities, and other public facilities, in the resettlement settlement area." Paragraph (4) of the same Article provides that "the expenses necessary for the implementation of the relocation measures under paragraph (1) shall be borne by the project operator: Provided, That if the project operator who is not an administrative agency takes the relocation measures, the local government may subsidize part of the expenses." In light of the institutional purport of the relocation measures, Article 5 (1) and (4) of the Enforcement Decree of the same Act provides that if the project operator individually supplies the housing site to the resettlement settlement area by taking the relocation measures for the migrants, the cost of the installation of the housing site shall be determined by the agreement between the project operator and the parties to the housing site shall be excluded.

[1] Article 6(1) of the Government Organization Act, Article 8(4) of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (repealed by Act No. 6656 of Feb. 4, 2002), Article 6 of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (repealed by Presidential Decree No. 17854 of Dec. 30, 2002) / [2] Article 250 of the Civil Procedure Act, Article 8(1) of the former Special Act on the Compensation for Public Loss (repealed by Act No. 6656 of Feb. 4, 2002) / [3] Article 2 of the Civil Act, Article 8 of the former Special Act on the Compensation for Public Loss (repealed by Act No. 6656 of Feb. 4, 2002), Article 5 of the former Enforcement Decree of the Special Act on the Compensation for Public Loss (repealed by Presidential Decree No. 17854 of Dec. 30, 2002) / [4] Article 68(15 of the former Enforcement Decree of the Special Act

[1] Supreme Court Decision 9Da2131 decided Nov. 8, 1996 (Gong1996Ha, 3543), Supreme Court Decision 99Da1120 decided Jun. 25, 199 (Gong1999Ha, 151) Supreme Court Decision 99Da30 decided Sept. 17, 199 (Gong1999Ha, 2226), Supreme Court Decision 99Da24201 decided Jan. 14, 200 (Gong200Sang, 376) decided May 12, 200 (Gong2000Ha, 379 decided Apr. 29, 209) 209

Plaintiff 1 and 118 others (Law Firm Shin, Attorneys Han-ho et al., Counsel for the plaintiff-appellant)

Republic of Korea and two others (Attorney Go Young-deok, Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na11866 delivered on August 1, 2001

The part of the judgment of the court below against the defendant Seoul Metropolitan Government and the defendant Gangseo-gu Seoul Metropolitan Government shall be reversed. The part against the defendant Seoul Metropolitan Government and the defendant Gangseo-gu, among the judgment of the court of first instance, shall be revoked, and this part of the lawsuit shall be dismissed. The appeal against the defendant Republic of Korea shall be dismissed. The plaintiffs and the defendant Gangseo-gu, Seoul

1. Factual basis

원심의 인정 사실과 기록에 의하면, (1) 피고 대한민국 산하 교통부(현재는 건설교통부로 개편되었다)는 김포국제공항에 대한 주무관청으로서 1976. 6. 11. 도시계획시설(공항)을 결정하였는데, 김포공항 시설확장사업이 장기간 방치됨으로 인하여 시설결정구역 내 주민들로부터 항공기 소음으로 인한 민원이 계속 제기되자, 시설결정구역 내의 가옥, 택지, 농지 등을 공공용지의취득및손실보상에관한특례법(이하 '특례법'이라고 줄여 쓴다)의 규정에 따라 연차적으로 매입하고 주민들을 이주시키기로 계획하고, 교통부장관은 1989. 12. 14. 서울특별시장(이하 '서울시장'이라고 한다)과 사이에 김포공항 시설결정구역 주민이주사업 위탁협약(이하 '제1차 협약'이라고 부른다)을 체결하였는데, 그 주요 내용은 시설결정구역 중 서울특별시 행정구역 내에 거주하는 주민의 이주업무는 서울시장에게 위탁하고, 이주대상을 공항시설결정구역 내에 거주하는 주민으로 하며, 이주단지의 분양가격은 토지매입비 및 조성비를 포함한(공공시설비 제외) 원가로 하되 교통부장관과 서울시장이 협의하여 결정하기로 한 사실, 서울시장은 제1차 협약에 의하여 교통부장관으로부터 위탁받은 업무의 일부를 서울특별시 강서구청장(이하 '강서구청장'이라고 한다)에게 재위탁하기로 하여 1990. 6. 20. 강서구청장과 주민이주협약을 체결하였는데, 이주단지의 분양가격은 토지매입비 및 조성비를 포함한(공공시설 설치비용 제외) 원가로 하되 강서구청장의 요청에 따라 서울시장이 교통부장관과 협의하여 결정하기로 한 사실, (2) 그런데 이주대상 부락과 동일 부락으로 형성되어 있었으나 공항시설결정구역 밖에 위치한 잔여가옥 73호의 주민들로부터 자신들도 이주사업에 포함시켜 달라는 민원이 제기됨에 따라 교통부장관은 1992. 4. 8. 서울시장과 제1차 협약을 수정하여, 위 73호의 주민들도 이주사업대상에 포함시키되, 한정된 예산으로 사업시행을 하기 위하여 이주단지의 대지분양가는 도로 등 공공시설 설치비용을 포함한 단지조성비 전체를 분양대지로 나누어 결정하도록 주민이주협약(이하 '제2차 협약'이라고 부른다)을 다시 체결하였고, 서울시장과 강서구청장도 1992. 6. 3. 제2차 협약의 내용을 반영하여 주민이주협약을 수정 체결하였으며, 이에 따라 강서구청장은 1992. 11. 24. 위 73호 주민을 이주사업대상에 포함시키는 취지의 김포공항 확장지역 이주대책시행공고(이하 '제1차 공고'라고 부른다)를 하면서, 단독주택지 분양대상자에 대한 택지공급조건을 공공시설 설치비용을 포함한 조성원가로 하기로 공고한 사실, (3) 그러나 이주대상에서 제외된 공항시설결정구역 외 인근 공항동 잔여가옥 주민들로부터 자신들도 이주대상에 포함시켜 조속한 시일 내에 이주가 되도록 해 달라는 취지의 청원서가 1993. 7. 13. 피고들의 담당 부서에 제출되자, 교통부장관과 서울시장은 1993. 8. 11. 제2차 협약을 수정하여, 추가시설결정구역 주민도 이주대상에 추가하여 주민이주협약(이하 '제3차 협약'이라고 부른다)을 다시 체결하였고, 서울시장과 강서구청장은 1993. 8. 16. 제3차 협약의 내용을 반영하여 수정협약을 체결하였으며, 그 후 강서구청장은 1993. 9. 7. 김포국제공항 추가시설결정구역 이주 및 생활대책공고(이하 '제2차 공고'라고 한다)를 하면서, 이주대상지역을 서울 강서구 공항동 404 일대로, 단독주택지 분양대상자에 대한 공급조건을 공공시설 설치비용을 포함한 조성원가로 하기로 공고한 사실, (4) 이 사건 이주대책사업시행에 따라 사업시행구역 내 토지 100,382㎡ 중 55,792㎡는 이주대상자에게 분양될 택지로 조성되었고, 나머지 면적은 종교용지, 도로, 공원 등으로 조성되었는데, 위 이주대상지의 조성원가는 도로, 급수 및 배수시설 등 공공시설 설치비용을 포함하여 산정할 경우 평당 1,581,090원(㎡당 478,253원)이고 공공시설 설치비용을 조성원가에서 제외하여 산정할 경우 평당 899,590원(㎡당 272,127원)이며, 서울시장과 강서구청장이 1996. 10. 31. 위 이주단지 조성을 완료함에 따라, 강서구청장은 주민이주대책사업의 시행을 위하여 1997. 9. 26. 원고들에게 공항이주단지 분양예정통보(이하 '이 사건 분양예정통보'라고 한다)를 하고, 같은 해 10. 10. 공항이주단지분양공고(이하 '이 사건 분양공고'라고 한다)를 하였는데 위 분양예정통지 및 분양공고의 공급조건 중 분양가는 공공시설 설치비용을 포함한 조성원가로 산정된 평당 1,581,090원(㎡당 478,253원)인 사실, (5) 원고들은 이 사건 제1차 공고 및 제2차 공고에 따라 강서구청장에게 이주대책을 신청하여 1993. 12. 31. 강서구 공고 제1993-210호에 의해 이 사건 이주대책 대상자로 선정된 자 또는 그 승계인인 사실, (6) 한편, 교통부장관과 서울시장 사이에 체결된 제2차 협약 및 제3차 협약에 의하면 서울시장은 협약사항에 대하여 신속하고 효과적인 업무추진을 위하여 필요한 경우 그 업무 중 일부를 강서구청장에게 재위탁하여 업무를 수행하게 할 수 있도록 약정하였고, 강서구청장은 서울시장으로부터 주민이주업무 중 이주단지 후보지 선정보고 및 부지매입, 이주단지의 도시계획결정을 위한 입안 및 사업시행을 위한 제반 행정절차, 택지조성 설계 및 공사시행, 택지 또는 아파트 분양, 입주자 선정 및 분양자 지정, 세입자 및 입주권 부여 대상자 확정, 사업비 및 제수수료 출납업무 등을 재위탁받아 피고 서울특별시 강서구의 명의로 이 사건 분양예정통보 및 분양공고를 한 사실을 인정할 수 있다.

2. Determination on the legitimacy of the lawsuit against the defendant Seoul Metropolitan Government (hereinafter referred to as "Seoul Metropolitan Government") and the defendant Gangseo-gu Seoul Metropolitan Government (hereinafter referred to as "Gangseo-gu")

Article 6 (1) of the Government Organization Act provides that "an administrative agency may delegate part of its affairs to its subsidiary organs or subordinate administrative agencies under the conditions as determined by Acts and subordinate statutes, or entrust or delegate it to other administrative agencies, local governments or subordinate administrative agencies. In this case, an agency so delegated or entrusted may inter alia re-entrust part of the affairs delegated or entrusted to its subsidiary organs or subordinate administrative agencies, if necessary under the conditions as determined by Acts and subordinate statutes." Article 8 (4) of the Special Act provides that "a project operator may entrust the head of the competent local government with the purchase of land, etc. for migrants and the establishment and implementation of relocation measures under the conditions as prescribed by the Presidential Decree." Article 6 (1) of the Special Act provides that "Where a project operator intends to entrust the head of the local government with the purchase of land, etc. for migrants and the establishment and implementation of relocation measures under the provisions of Article 8 (4) of the Act, he/she shall consult in advance with the head of the competent local government with regard to the terms and conditions of entrustment, and Article 8 (2) provides that "the amount of entrustment fees shall be granted by the local government."

In full view of the facts of recognition and each of the above provisions, the entrustment and re-entrustment of the affairs of purchasing land, etc. for the migrants of this case and of establishing and implementing relocation measures (hereinafter referred to as "settlement measures") shall be deemed to fall under the entrustment of the agency as the head of Gangseo-gu, Seoul Metropolitan Government or the head of Gangseo-gu, which is not the defendant Seoul Metropolitan Government or the defendant Gangseo-gu, and therefore, in implementing the relocation measures of this case, the Seoul Mayor or the head of Gangseo-gu, which is the entrusted agency, shall handle the affairs in the position of the administrative agency under the jurisdiction of the Republic of Korea, to which the Minister of Construction and Transportation belongs, and the subject to whom the affairs shall be attributed is changed (see Supreme Court Decisions 96Da21331 delivered on November 8, 196, 99Da70600 delivered on May 12, 200, etc.). Accordingly, the defendant as a local government or the defendant Gangseo-gu, cannot be the subject to the rights and duties under the relocation measures of this case.

Thus, barring any special circumstance, the plaintiffs are not parties to the dispute, and there is no interest in seeking confirmation of partial invalidity of the terms of sale of this case against the defendant Seoul Metropolitan Government or defendant Gangseo-gu, which is not parties to the dispute. However, the court below made a decision on the merits on the premise that there is a interest in litigation between the above defendants. Thus, there is an error of law by misunderstanding the legal principles on the subject to which the affairs pertaining to the relocation measures, the authority entrustment, and the interest in confirmation

3. Judgment on Defendant Republic of Korea’s grounds of appeal

A. As to the assertion that there is no legal interest in dispute by lawsuit, and that the claim in this case is contrary to the good faith principle

(1) The legal status of removal of risk and non-re-issuance by the action of confirmation is not necessarily required to be supported by a specific right, and even if the occurrence of a specific right based on its legal status is affected by the condition or time limit or its legal status is in the process of formation, if it constitutes the legal interest worthy of protection (see Supreme Court Decision 2000Da2429 delivered on May 12, 200). On the other hand, the relocation measures under Article 8 of the Act on Special Cases give the legal interest to the partner in the public project to demand special opportunities for supply. The right to request special supply is recognized. If the project operator establishes a detailed plan for relocation measures and notifies or notifies the relevant resident of the plan, and then notifies the project operator of the plan to obtain the right to purchase the land, and if the project operator confirms and determines the right to purchase the land as the object of relocation measures, the plaintiffs are not obligated to obtain specific right to purchase the land from the head of Gangseo-gu Seoul Metropolitan Government and to seek the right to purchase the land in accordance with the above procedure.

In addition, as seen earlier, the plaintiffs did not file an application for parcelling-out according to the notification of expected parcelling-out and the announcement of parcelling-out. However, according to the records, the data revealed the fact that the plaintiffs have tried to point out and correct the illegality of the supply conditions before and after the notification of expected parcelling-out and the announcement of parcelling-out. In light of these circumstances, the fact that the plaintiffs did not file an application for parcelling-out within the fixed period does not necessarily mean that the plaintiffs renounced their status as the object

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

(2) Meanwhile, the principle of trust and good faith is an abstract norm that a party to a legal relationship shall not exercise his right or perform his duty in a way that violates the principle of trust and good faith, taking into account the other party’s interest. In order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, there must be a good faith provided to the other party or there should be reasonable circumstances that the other party has good faith. The exercise of the right against the other party’s trust should be in a situation that is not acceptable in light of the concept of justice, and barring special circumstances, barring special circumstances, even though the person who has done the legal act knowing that it is null and void due to its violation of the law, it cannot be deemed as contrary to the principle of trust and good faith or the principle of no advice or an abuse of rights (see, e.g., Supreme Court Decisions 9Da53490, May 15, 200; 201Da67126, Mar. 15, 2002).

According to the records, there are circumstances in which the subjects of relocation measures have increased at the request of residents, including the plaintiffs, and the residents are forced to bear the cost of public facilities due to the lack of budget, and thus, the plaintiffs' assertion that the costs of public facilities cannot be borne by them cannot be deemed as contrary to the principle of good faith. Furthermore, as long as the provisions of the Enforcement Decree of the Act on Special Cases Concerning the Cost of Relocation Measures are regarded as mandatory regulations, even if some of the plaintiffs expressed their intent to accept the price of the sale in violation, it cannot be said that it goes against the principle of good faith or the principle of good faith.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the good faith principle as alleged in the grounds of appeal.

B. As to the assertion that there is a misapprehension of the legal principle on Article 5(1) and (4) of the Enforcement Decree of the Special Act

Article 8(1) of the Act on Special Cases concerning the Settlement of Residents provides that "a project operator shall establish relocation measures for those who will lose their base of livelihood by providing land, etc. necessary for the implementation of a public project (hereinafter referred to as "resettled") as prescribed by Presidential Decree." The Act on Special Cases concerning the Settlement of Residents (hereinafter referred to as "resettled") provides that "the relocation measures under the Act on Special Cases concerning the Settlement of Residents provide land, etc. necessary for the implementation of a public project to ensure that the project operator creates a housing site that includes basic living facilities, or constructs housing on the ground and supplies the land to migrants with only the cost of input." The original purpose of the Act is to restore the original living condition of migrants to the original state, and at the same time, provide the so-called system prepared by the positive and political consideration of the State as part of compensation for living (see Supreme Court en banc Decision 92Da35783, May 24, 1994).

However, Article 5 (1) of the Enforcement Decree of the Special Act provides that "the details of the relocation measures established pursuant to the provisions of Article 8 (1) of the Act shall include basic living facilities according to the local conditions such as roads, water supply and drainage facilities, and other public facilities in the resettlement area." Paragraph (4) of the same Article provides that "the expenses necessary to implement the relocation measures under the provisions of paragraph (1) shall be borne by the project operator: Provided, That where a project operator who is not an administrative agency takes relocation measures, a local government may subsidize part of the expenses." In light of the above institutional purpose of the relocation measures, Article 5 (1) and (4) of the Enforcement Decree of the Special Act provides that if a project operator supplies housing site to a resettlement area by creating a site for relocation measures for migrants, it shall be installed with basic living facilities according to the local conditions such as roads, water supply and drainage facilities, and other public facilities, etc. In addition, the cost of installation of the public facilities can not be transferred to migrants, and it shall be interpreted that the construction cost of the housing site is owned by the project operator.

Therefore, the decision of the court below which held that the part which included the public facility cost in the notice of the scheduled sale price and the sale price in the notice of sale is null and void due to a legal act violating the above mandatory law is just, and it is not erroneous in the misapprehension of legal principles as to the cost bearing of the relocation measures under the Act

3. Therefore, among the judgment of the court below, the part on the grounds of appeal on the merits against the defendant Seoul Metropolitan Government and the defendant Gangseo-gu shall be reversed, and this court shall directly render a decision pursuant to Article 437 subparagraph 1 of the Civil Procedure Act. The court of first instance also accepted the plaintiff's claim on the premise that the lawsuit against the above defendants is legitimate. The part on the above defendants among the judgment of the court of first instance shall be revoked, and this part of the lawsuit shall be dismissed, and the appeal against the defendant Republic of Korea shall be dismissed.

Justices Lee Ji-dam (Presiding Justice)