[1] The meaning of measures for resettlement under Article 8(1) of the former Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, and Article 5(5) of the Enforcement Decree of the same Act, and whether a project implementer has discretion in the quantity of a house to be specially supplied, the selection of a person to be specially

[2] The case holding that where a project implementer, as measures for relocation pursuant to Article 8 (1) of the former Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, limits a person to be supplied to a person with no house as of the date of application for special supply in accordance with Article 19 of the former Rules on the Supply of Housing to a person with no house as of the date of application for special supply, the base point for determining whether a person with no house is a person with no house shall be the date when the project implementer determines a person to be specially supplied national housing pursuant to the former Rules on Special Supply of National Housing

[1] Relocation measures implemented pursuant to Article 8(1) of the former Act on Special Cases concerning the Acquisition of Land for Public Works and the Compensation Therefor (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002) and Article 5(5) of the Enforcement Decree of the same Act (repealed by Article 2 of the Addenda to the Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Presidential Decree No. 17854 of Dec. 30, 2002) shall have the discretion to sell the housing site in the resettlement site to the migrant who is deprived of the basis of living due to the implementation of the public project, and the project operator shall have

[2] The case holding that in the case where a project implementer, as measures for relocation pursuant to Article 8 (1) of the former Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, limits a person to be supplied to a homeless household as of the date of application for special supply of housing in accordance with Article 19 of the former Rules on Special Cases concerning the Supply of Housing, the project implementer shall not regard the date when the project implementer decided a person to be specially supplied as a person to be supplied as a "person with no house as of the date of application for special supply" as the date of determining whether the person to be supplied is a person with no house, and shall not be regarded as the date when the project implementer decided a person to be specially supplied with national housing in accordance with Article 19 of the former Rules on Special Supply of Housing as the date when the special supply

[1] Article 8 (1) of the former Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation therefor (repealed by Article 2 of the Addenda of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of Feb. 4, 2002) (see Article 78 of the current Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), Article 5 (5) of the former Enforcement Decree of the Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation therefor (repealed by Article 2 of the Addenda of the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 17854 of Dec. 30, 202) (see Article 40 of the current Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor) / [2] Article 8 (1) of the former Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation therefor (see Article 288

[1] Supreme Court Decision 94Nu11279 delivered on October 12, 1995 (Gong1995Ha, 3795) Supreme Court Decision 2004Du978 Delivered on April 28, 2006

[Judgment of the court below]

The head of Dongjak-gu Seoul Metropolitan Government

Seoul High Court Decision 2003Nu10055 delivered on April 22, 2004

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

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 4

Article 3(1) of the Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 232, May 26, 2000; hereinafter referred to as the “amended Rules on Housing Supply”) provides that “this Rule shall apply to the supply of housing and welfare facilities by a project undertaker after obtaining approval of a project plan pursuant to Article 33 of the Housing Construction Promotion Act,” and Article 3(4) of the same Rules provides that “Where the housing falling under any of the following subparagraphs is supplied to the person concerned for 20 or 20 households or more, the same shall not apply to the supply of the remaining housing by a project undertaker who directly constructs the housing or by entrusting the construction of the housing to another project undertaker for the relocation measures for the implementation of the public project, or by a person who is provided with the housing or the housing site for the construction of the housing site for the relocation measures by a project undertaker under subparagraph 3 of the same Article (amended by Ordinance of the Ministry of Construction and Transportation No. 270, Mar. 27, 2000).”

Therefore, the court below's determination is erroneous on the premise that Article 19, which provides for the special supply of housing, is newly established under the amended supply rule, in the case of "a house constructed by a public project operator directly or by another project operator for the relocation measures for the implementation of a public project, or a house constructed by a person who is provided with a housing site for the relocation measures for another project operator."

However, even if examining the record, it is insufficient to recognize that the defendant directly constructs ○○ apartment on the land outside Dongjak-gu Seoul ( Address 1 omitted) and three parcels, or that it is constructed by the Seoul Special Metropolitan City Urban Development Corporation by the defendant's entrustment. In the same purport, the court below rejected the plaintiff's assertion that Article 19 of the revised supply rules, which requires the requirements of homeless generation in the special supply of housing, is excluded in accordance with Article 3 (4) 3 of the amended supply rules, is in violation of the rules of evidence, such as the grounds for appeal, and there is no error of misapprehending the legal principles as to the application of the amended supply rules.

2. As to the third ground for appeal

Article 8(1) of the former Act on Special Cases Concerning the Acquisition of Land for Public Works and the Compensation for Loss (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, Act No. 6656 of Feb. 4, 2002; hereinafter “Public Special Act”) provides that “A project operator shall establish and implement relocation measures as prescribed by the Presidential Decree for a person who is deprived of his/her base of livelihood by providing land, etc. necessary for the implementation of a public project as a result of the provision of land, etc., as prescribed by the Presidential Decree.” Article 5(5) proviso of the Enforcement Decree of the same Act (amended by Article 2 of the Addenda to the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Damages (hereinafter “Enforcement Decree of the Special Act”) provides that “Where a project operator supplies a housing site or house to a person subject to relocation measures, such as the Housing Site Development Promotion Act or the Housing Construction Promotion Act (including a case where the housing is supplied by intermediation of a project operator).

In addition, according to the records, upon delegation by the Mayor of Seoul Special Metropolitan City, the defendant acquired through consultation the plaintiff's △△△△ Park development project (hereinafter "the urban planning project in this case") that is incorporated and removed in the section for the urban planning project, which is the urban planning project (hereinafter "the urban planning project in this case"), and then selected the deceased as a person eligible for special supply of national housing, and made the disposition in this case that excluded the plaintiff, the heir of the deceased, from the person eligible for special supply of national housing on November 13, 2001, on the ground that the deceased did not have any house on November 13, 2001. In light of the above-related Acts and subordinate statutes and records, the court below is just to reject the plaintiff's assertion that the court below did not have the authority to select the person eligible

3. Regarding ground of appeal No. 2

According to Article 8 (1) of the Public Special Act and Article 5 (5) of the Enforcement Decree of the Public Special Act, the relocation measures implemented pursuant to Article 8 (1) of the Public Special Act and Article 5 (5) of the Enforcement Decree of the Public Special Act shall require a person who is deprived of his/her base of living due to the implementation of a public project to sell the housing site in the resettlement area to the person who is deprived of his/her base of living due to the implementation of the public project, and the project operator has discretion in the quantity of the special supplied housing,

According to the records, the defendant, as measures for the special supply of the apartment in this case under the urban planning project of this case, decided to limit the object of the special supply to a homeless householder as of the date of application for special supply (it is possible only for all families without house, building owner, family members, etc. to own the building in other areas than Seoul) and notified the purport thereof through notice and resident representative. The owner of the removed house including the deceased, etc., submitted an application for special supply of national housing to the defendant around September 21, 1999, and submitted a written pledge stating that "it is no head of the household as of the date of application for national housing, and if it is found to be one house as a result of the computer inquiry, the supply shall be revoked." Thus, the defendant, as of the date of application for special supply of the apartment in this case, restricted the object of the special supply to a homeless householder as of the date of application for the special supply of national housing as of the date of the special supply, and the head of the Gu (the head of the Gu shall notify the head of the Gu under his jurisdiction of the Seoul Metropolitan Government) without delay.

If so, the record reveals that the deceased can apply for a special supply of national housing only after February 11, 200, on which the defendant decided the person to be specially supplied with national housing in accordance with the Seoul Special Metropolitan City Regulations (it shall not be possible to determine whether the deceased is a homeless householder as of September 21, 1999, which is the date of submission of the application form for special supply not prepared in accordance with the Seoul Special Metropolitan City Regulations, which is the date of filing the application form and the scale of the application form). The court below should have deliberated on the date on which the deceased applied for a special supply under the Seoul Special Rules of Seoul Special Metropolitan City and should have determined whether the deceased is a homeless householder

Nevertheless, the court below decided that the plaintiff is not a homeless householder as of February 11, 200 after the date of the public notice of invitation of residents in this case where there was no public notice of invitation of residents. The court below erred in the misapprehension of legal principles as to the criteria for selection of persons eligible for special supply, and the grounds for appeal pointing this out are with merit.

4. Conclusion

Therefore, 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 Yang Sung-tae (Presiding Justice)