Whether it is necessary to compensate for the lessee's operating loss when accepting "temporary buildings" under Article 14-2 (4) of the former Urban Planning Act (negative)

The provisions of Article 14-2 (4) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 28, 2000) (amended by Act No. 6243 of Jan. 28, 200) is already known that a person who intends to construct a building with respect to the land for which an execution plan of an urban planning facility project has been publicly announced has already been aware that there is a duty to restore the building, such as removing the building constructed when a long-term urban planning project is implemented. Thus, if a building is aware of such fact, he can decide whether to construct a building by balancing economic feasibility and other profit-making losses arising from the temporary use and restoration of the building. If a building is constructed with knowledge of such fact, he is excessively infringed to order the restoration of the building without compensation or a special sacrifice in implementing an urban planning project instead of using it for a temporary building until the implementation of an urban planning project, the owner of the land shall not only bear the duty to remove the temporary building at his own expense and may not claim compensation for losses due to the removal of the temporary building.

Article 14-2 (4) of the former Urban Planning Act (amended by Act No. 6243 of Jan. 20, 200) (Article 50 (3) of the current Act)

Constitutional Court Order 98HunBa82 dated September 16, 1999 (HunGong38, 49)

Plaintiff (Attorney Go Sung-soo et al., Counsel for the plaintiff-appellant)

Jeju City (Attorney Kim Jong-sub, Counsel for defendant-appellant)

Gwangju High Court Decision 2000Na715 delivered on December 22, 2000

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

We examine the grounds of appeal.

1. The reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, and the records, are as follows.

A. On February 20, 1991, Nonparty 1 and Nonparty 2 constructed a temporary building with a building permit obtained from the Jeju City Mayor under the Defendant’s control pursuant to Article 14-2(4) of the former Urban Planning Act (wholly amended by Act No. 6243, Jan. 28, 2000), which is the land for which the urban planning execution plan was publicly announced. The area of the temporary building originally built was 104.6 square meters, but it was actually constructed as 41 square meters in excess of this.

B. At the time of obtaining the above building permit, Nonparty 1 and Nonparty 2 promised to voluntarily remove the Jeju Mayor if the period of existence expires or if there is an order to remove the Jeju Mayor even if the period of existence expires or within the duration of existence, and not to claim any compensation therefor.

C. The Plaintiff leased the above temporary building and operated a new retail business with the trade name called “sponsive launch.”

D. However, in order to maintain mountainous districts which are habitual flood areas in November 3, 199, the defendant completed an appraisal of the plaintiff's business losses in order to remove the above temporary buildings in conflict with the above urban planning, and entered into a compensation agreement with the plaintiff in January 2000. However, the above temporary building was found to be a temporary building under Article 14-2 (4) of the former Urban Planning Act, and later discovered it later and notified the plaintiff on March 3, 200, that the plaintiff's business losses are not subject to compensation, so the plaintiff's business losses are not subject to compensation, and thus, the plaintiff must move to the store of this case without any compensation from the plaintiff, and the removal substitute execution procedure started.

2. In this case, even though the owner of a temporary building promised to voluntarily remove the temporary building without compensation, as long as the Plaintiff had lawfully run a new retail business at that place, the lower court determined that the Defendant is liable to compensate the Plaintiff’s business losses, and that the Defendant cannot be held liable to compensate for losses due to tort since the Defendant started the procedure for the removal of the temporary building without fulfilling the obligation to compensate for business losses and caused the Plaintiff to suffer losses due to the removal of the said temporary building under the above agreement. There are no special circumstances suggesting that the above agreement has effect on the Plaintiff. Even if the owner of the temporary building promised to voluntarily remove the temporary building and not claim for compensation, it did not intend to claim for direct losses equivalent to the value of the building itself, which will be caused by the removal of the temporary building, even if the owner of the temporary building had promised to voluntarily remove the temporary building and not claim for compensation for such losses. Thus, the Defendant did not waive the claim for compensation for business losses caused by the removal of the temporary building, and the Defendant started the procedure for the removal without fulfilling the obligation to compensate for business losses.

3. Article 14-2 (4) of the former Urban Planning Act and Article 14-2 (3) of the same Act may, in case where the head of Si/Gun has publicly announced the execution plan under paragraph (3), permit the construction of temporary buildings on the land for which the execution plan has been publicly announced under the conditions as prescribed by the Presidential Decree. In this case, when the urban planning project for the relevant land is implemented, the head of Si/Gun shall order the restoration of the said land, such as the removal of temporary buildings, without compensation, not later

This provision is intended for a person who intends to construct a building with respect to the land for which an implementation plan of an urban planning facility project has been publicly announced, to decide whether to construct a building by balancing economic feasibility and profit-making loss arising from the temporary use of a building and the restoration of the original state in the event that an urban planning facility project is implemented in the future. Thus, if a building is constructed with knowledge of such fact, it cannot be deemed an excessive violation of ordering the restoration of the building without compensation or a special sacrifice in implementing an urban planning project (see Constitutional Court Order 98HunBa82, Sept. 16, 199). Therefore, in the event a temporary building is constructed and an urban planning project is implemented in lieu of a temporary building being temporarily used until the implementation of an urban planning project, it is not required to remove the building at his own expense, and as a result, a loss that cannot be claimed for compensation includes not only losses arising from the removal of the temporary building itself, but also business losses arising from the removal of the temporary building, and as long as the owner is not entitled to claim compensation for the removal of the building.

Therefore, the judgment of the court below is clearly erroneous in the misapprehension of legal principles under Article 14-2 (4) of the former Urban Planning Act, on the premise that the plaintiff can claim compensation for business losses caused by the removal of a temporary building. Thus, the ground of appeal pointing this out is justified.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)