[1] The statutory base date for relocation measures falling under the “date of public announcement under relevant Acts and subordinate statutes for public works” in an urban development project (i.e., the date of public announcement of designation of an urban development zone) and, on this basis, whether it should be determined whether a person subject to relocation measures under the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects is a person subject to relocation measures under Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (affirmative)

[2] The purpose of Article 2 of the Addenda of the Special Act on the Promotion of Urban Renewal (amended by December 30, 2005) and, in cases where an existing urban development zone is deemed to have been designated, publicly announced, or designated and publicly announced as an urban renewal acceleration district pursuant to the aforementioned Addenda, whether the statutory relocation measures base date for the area included in the previous urban development zone is the public inspection announcement of the designation of the previous urban development zone (affirmative

[3] The purport of Article 6 of the Addenda to the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by December 30, 2002), and whether the above provision can be included in the scope of a person subject to relocation measures until January 24, 1989, as well as the time of construction of an unauthorized building, and the time of acquisition of ownership or right to disposal (negative)

[1] Articles 21(2) and 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007; hereinafter the same), Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter the same shall apply), Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter the same shall apply), and Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007); Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Relocation Measures for Residents (amended by Presidential Decree No. 3075 of the former Act).

[2] The enactment of the Special Provision on an existing project district in the Addenda of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 8786 of Dec. 21, 2007; hereinafter “Urban Renewal Act”) (amended by Act No. 8786 of Dec. 30, 2005) is to ensure that the project can continue more efficiently by ensuring the continuity of the existing project and avoiding the repetition of the dance procedure, in cases where the project continues by applying the former Special Provision on an urban development project, etc., which has gone through procedural guarantee, such as resident inspection, in accordance with the relevant Acts and subordinate statutes, such as the Urban Development Act and subordinate statutes.

In light of the structure, purpose, content, and legislative intent of Article 1, Article 2 subparag. 2, Article 3(2), and Article 2 of the Addenda of the Urban Renewal Act (amended by Act No. 8376 of Apr. 11, 2007), where an urban development project, which was implemented through the procedures under the former Urban Development Act (amended by Presidential Decree No. 18738 of Mar. 12, 2005), such as the public inspection of residents and the designation and announcement of an urban development zone, is recognized as an urban renewal acceleration district, and is deemed designated, publicly announced, or designated and publicly announced as an urban renewal acceleration district under Article 2 of the Addenda of the Urban Renewal Act (amended by Presidential Decree No. 18738 of Dec. 30, 2005), the statutory basic date for relocation measures in an area included in the previous urban development zone, is still the public inspection announcement date of the designation of the previous urban development zone, unless there are special circumstances.

[3] In light of the language and text of Article 6 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 20722 of Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”), the purpose and structure of each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works Act stipulating a person ineligible for relocation measures, etc., the above supplementary provision is intended to exceptionally exclude the owner from the application of subparagraph 1 of Article 40(3) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”), and the purpose and structure of Article 40(3) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 10680, Dec. 30, 2002).

[1] Article 78(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 865 of Oct. 17, 2007); Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Presidential Decree No. 2072 of Feb. 29, 2008); Article 7, Article 21(2) of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007) (see current Article 22(2)), Article 23 (see current Article 24) of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 20 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 2018 of Mar. 12, 2005); Article 20 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree)

[1] [3] Supreme Court Decision 2014Da14672 Decided July 23, 2015 (Gong2015Ha, 1215) / [1] Supreme Court Decision 2012Du22911 Decided July 23, 2015 (Gong2015Ha, 1256)

Plaintiff 1 and 26 others (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

E. E.S. (Limited Law LLC, Attorneys Lee In- case et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na80530 decided September 25, 2014

The part of the lower judgment against the Defendant against Plaintiffs 1, 2, 5, 11, and 12 is reversed, and that part of the case is remanded to the Seoul High Court. All appeals against the Plaintiffs other than Plaintiffs 1, 2, 5, 11, and 12 are dismissed. The costs of appeal against the Plaintiffs other than Plaintiffs 1, 2, 5, 11, and 12 are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the scope of the person subject to the relocation measures that the defendant is obligated to install basic facilities

A. Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007; hereinafter the same), Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter the same shall apply), Article 40(3)2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 2072 of Feb. 29, 2008; hereinafter the same shall apply) provides that the owner of a building subject to relocation measures (the former Act was implemented from Jan. 1, 2003; hereinafter the same shall apply); Article 3 of the Addenda of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall be deemed to be a person subject to relocation measures or a person subject to relocation measures under the former Enforcement Decree of the Act.

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Public Works Act shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act. While the former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree, the main text of Article 78(4) provides that “The details of relocation measures shall include basic living facilities at a normal level (hereinafter “basic living facilities”) such as roads, water supply facilities, drainage facilities and other public facilities in the resettlement area (including a housing complex constructed by the implementation of relocation measures), and the expenses necessary therefor shall be borne by the project operator when establishing and implementing relocation measures.”

B. In full view of the structure, content, and purport of the relevant laws and regulations, the procedure for the implementation of public works under the Urban Development Act and the policy needs to prevent speculative transactions following the implementation of such projects, it is reasonable to view that the statutory base date for relocation measures falling under the "date of public announcement, etc. under the relevant Acts and subordinate statutes for public works" in an urban development project is the date of public announcement of designation of an urban development zone under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005) as the date of public announcement of designation of an urban development zone under Article 40(3)2 of the former Enforcement Decree of the Public Works Act. Based on this, it is necessary to determine whether a person is a person subject to relocation measures under the main sentence of Article 40(3)2 of the former Enforcement Decree of the Public Works Act, which is the content of relocation measures only for those subject to relocation measures, and the provisions thereof cannot be applied to those subject to beneficial relocation measures (see, etc.

C. Meanwhile, Article 1 of the former Special Act on the Promotion of Urban Renewal (amended by Act No. 8786 of Dec. 21, 2007; hereinafter “Urban Renewal Act”) provides that “The purpose of this Act is to promote balanced urban development and contribute to improving the quality of life of citizens by prescribing matters necessary for comprehensively planning and efficiently promoting projects for improving the residential environment, expanding infrastructure, and restoring urban functions in underdeveloped areas, and restoring urban functions in urban areas.” Article 2 Subparag. 2 of the Act provides that “The purpose of this Act is to promote balanced urban development and improve the quality of life of citizens,” and Article 3(2) of the Act provides that “any matter not provided for in this Act in the implementation of urban renewal acceleration projects shall be governed by the relevant Acts as provided for in this Act, and Article 2 of the Addenda of the Urban Renewal Act (amended by Act No. 8786 of Dec. 30, 2005) provides that “the designation and public notice of urban renewal acceleration districts or the designation and public notice of urban renewal acceleration districts under this Act shall be deemed to be made by the competent Mayor/Do Governor or its designation and public notice.”

As such, establishing the Special Provision on the existing project district in the Addenda to the Urban Renewal Act is to ensure the continuity of the existing project and keep the project more efficient by ensuring the continuity of the existing project and avoiding the repetition of the dance procedure in case of an urban development project, etc., which has gone through procedural guarantee such as resident inspection in accordance with the relevant laws and regulations, such as the Urban Development Act and subordinate statutes.

In light of the structure, purpose, content, legislative intent, etc. of the relevant provisions, where an urban development project that was implemented through the procedures under the former Act and subordinate statutes for urban development, such as public inspection of residents and designation and announcement of an urban development zone, is deemed to have been designated and publicly announced as an urban renewal acceleration district or to have been designated and publicly announced as an urban renewal acceleration district by satisfying the requirements under Article 2 of the Addenda of the above Urban Renewal Act, the statutory base date for relocation measures for an area included in the previous urban development zone shall be deemed the date of public inspection

2. As to the grounds of appeal Nos. 1 and 2

A. The judgment of the court below

According to the reasoning of the judgment below, the court below held that among the plaintiffs, the plaintiff 1, 2, 3, 4, 5, 10, 11, 12, 18, and 21 (hereinafter "1") constitutes grounds for excluding those subject to relocation measures under Article 78 (1) of the former Public Works Act and Article 40 (3) 1 and 2 of the former Enforcement Decree of the Public Works Act, the person who still satisfies the requirements for relocation measures under Article 6 (hereinafter "Article 6 of the Addenda of the former Enforcement Decree") of the former Enforcement Decree of the Public Works Act shall be deemed as one subject to relocation measures under Article 78 (3) of the former Public Works Act and Article 40 (3) 2 of the former Enforcement Decree of the Public Works Act and Article 6 (hereinafter "Article 6 of the Enforcement Decree of the former Enforcement Decree") of the former Enforcement Decree of the Urban Development Act, and the person who owns and owns a new urban development project without permission before January 24, 1989.

Furthermore, the lower court determined that the Defendant is obligated to return unjust enrichment to the said Plaintiffs within the scope of violation of Article 78(4) of the former Public Works Act, which is a mandatory provision, on the ground that all 11 persons including Plaintiff 1, etc. are subject to the relocation measures under Article 78(1) of the former Public Works Act, on the ground that the Defendant is obligated to install basic facilities at the project executor’s expense to take the relocation measures pursuant to Article 78(4) of the former Public Works Act, on the ground that: (a) Plaintiff 4, Plaintiff 5, Plaintiff 10, Plaintiff 12, and the deceased Nonparty 1 had been residing before January 24, 1989; and (b) Plaintiff 20 solely inherited the deceased Nonparty 1.

B. As to the interpretation of Article 6 of the Addenda to the Enforcement Decree

Article 6 of the Addenda to the Enforcement Decree provides, “The owner of a building constructed without obtaining permission or filing a report on construction as of January 24, 1989 shall be included in the person subject to relocation measures, notwithstanding Article 40(3)1 of the Enforcement Decree of the Public Works Act.” In light of the language and details of the above Addenda provisions and the developments leading up to the introduction thereof, the purport and structure of each subparagraph of Article 40(3) of the Enforcement Decree of the former Public Works Act stipulating a person subject to relocation measures. In the case of an unauthorized building already constructed at the time of January 24, 1989, the above Addenda provisions purport only to exceptionally exclude the application of subparagraph 1 among the requirements for exclusion from relocation measures under each subparagraph of Article 40(3) of the former Enforcement Decree of the Public Works Act to the owner of the building without permission or filing a report. It is interpreted that not only the time of construction but also the time of acquisition of ownership or right to de facto disposal should be included in the scope of relocation measures (see, e.g., Supreme Court Decision 201427.

In the same purport, the court below is just in holding that even if an unauthorized building constructed before January 24, 1989 was acquired after January 24, 1989, it does not constitute a ground for exclusion of a person subject to relocation measures under Article 40 (3) 1 of the former Enforcement Decree of the Public Works Act. In so doing, the court below did not err by misapprehending the legal principles under Article 6 of the Addenda of the

C. Whether both Plaintiff 1 and 11 are subject to measures for resettlement as prescribed by law

(1) The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① Around January 15, 2004, the public notice was issued for the public inspection of residents to designate a Pyeongtaek New Town district as an urban development zone. On February 25, 2004, among the instant project zone designated as an urban development zone pursuant to Article 204-58 of the Seoul Special Metropolitan City Notice No. 2004-58 of February 25, 2004, the said zone included 152,813.6 square meters (hereinafter “the instant reservation site”). However, the specific development purpose was not determined on the land utilization plan.

② On October 19, 2006, an urban renewal acceleration district was designated in accordance with the designation of urban renewal acceleration districts and the determination and notification of urban renewal acceleration plans as of October 19, 2006. Since the specific land use plan of the instant reservation district became final and conclusive, the urban renewal acceleration plan was modified in accordance with Article 207-377 of the Seoul Special Metropolitan City Public Notice as of October 18, 2007, with the content of reducing the said reservation area from 152,790 square meters to 0 square meters.

③ On January 15, 2004, Plaintiffs 3, 4, 10, 18, 18, 18, and 21 owned a residential building and resided therein. Plaintiff 20 solely inherited the deceased Nonparty 1 while the first instance trial was pending.

④ Plaintiffs 1, 2, and 5, and Plaintiff 11, who resided in a residential building located in the instant reservation, filed a move-in report on the relevant building after January 15, 2004.

⑤ Meanwhile, the Plaintiff 12, along with the deceased Nonparty 2 and the mother Nonparty 3, who is his father, had resided in Jin-dong ( Address omitted) without permission from May 14, 1990. Although the time of death of the deceased Nonparty 2 is unclear, the time of death of the deceased Nonparty 2 was changed from the deceased Nonparty 2 to Nonparty 3 on the ground of “household death” as of January 15, 2003 on the resident registration.

(2) According to the aforementioned legal principles, whether a person is a person subject to relocation measures under the Act on Public Works in an urban development project governed by Article 78(4) of the former Public Works Act shall be determined based on the date of public inspection and announcement as to the designation of an urban development zone, and the same applies to an area included in the previous urban development zone where an existing urban development zone is recognized and designated and publicly announced as an urban renewal acceleration district pursuant to

Furthermore, it is difficult to see that the aforementioned mountain village was designated as the place of reservation in the urban development zone merely because it was excluded from the project zone. In the case of a reserved land for which specific development purposes are determined later, the policy needs to prevent speculative transactions arising from the implementation of the project are maintained. Therefore, it is reasonable to view the base date for relocation measures regarding the instant reserved land included in the previous urban development zone as the date of the public inspection announcement as of January 15, 2004, like the remaining project zones.

(3) As to whether Plaintiffs 3, 4, 10, 18, and 20 are subject to the legal relocation measures

Examining the aforementioned facts in light of the legal principles as seen earlier, the lower court’s conclusion that the Plaintiffs constituted a person subject to the relocation measures stipulated in the former Public Works Act, etc. is justifiable, inasmuch as they owned a residential building before January 15, 2004, which was the legal base date for the relocation measures in this case, and resided therein.

(4) As to whether Plaintiffs 1, 2, 5, 11, and 12 (hereinafter “five persons including Plaintiff 1”) constitute legal persons subject to relocation measures

As seen earlier, Plaintiff 1, 2, and 5, who resided in a residential building located in the reservation of this case with Plaintiff 1, 2, and 5, merely moved in the building after January 15, 2004, which is the legal base date for relocation measures. Therefore, it is difficult to deem that the above Plaintiffs are subject to relocation measures stipulated in the former Public Works Act and subordinate statutes.

In addition, according to the above facts, the plaintiff 12 and the deceased non-party 2 were living in the building from May 14, 1990 along with the deceased non-party 2, and it appears that the deceased non-party 2 died on or before January 15, 2003, which is the day of the change of the above householder, so it can be determined whether the deceased non-party 2 is a person subject to the relocation measures stipulated in the law that should be first determined. Thus, the court below should have determined the facts by examining when the deceased non-party 2 died and whether the deceased non-party 12 was inherited through the inheritance division agreement, etc., and then determined whether the plaintiff 12 was included in the scope of the person subject to the relocation measures stipulated in the law that is subject to the application of Article 78 (4) of the former Public Works Act.

(5) Nevertheless, the lower court determined that five persons, including Plaintiff 1, etc., were eligible for relocation measures to be subject to Article 78(4) of the former Public Works Act solely on the ground that they filed a move-in report prior to the date of public announcement of the compensation plan for each district. In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for classification of persons subject to relocation measures under the former Public Works Act, etc. and the subject of application of Article 78(4

3. Regarding ground of appeal No. 3

According to the reasoning of the judgment of the court below, the court below rejected the defendant's assertion that the defendant should calculate the cost of the basic living facilities based on the area which deducts 252,89 square meters of the road site that the defendant acquired without compensation from

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on Article 78(4) of the former Public Works Act, or by violating

4. Regarding ground of appeal No. 4

According to the reasoning of the judgment of the court below, the court below rejected the defendant's assertion on the trust of lawsuit on the ground that there is no evidence to support that the plaintiff 10 again received the claim for return of unjust enrichment of this case from the successor who acquired the status of the buyer from

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the

5. Conclusion

The part of the judgment of the court below against the defendant against the plaintiff 1 and 5 is reversed, and that part of the case is remanded to the court below for a new trial and determination. All appeals against the plaintiffs other than the plaintiff 1 and 5 are dismissed, and the costs of appeal against the plaintiffs other than the plaintiff 1 and 5 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)