Plaintiff (Law Firm Dong, Attorneys Kim Hong-chul et al., Counsel for plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Woo, Attorneys Mayang-tae, Counsel for defendant-appellant)

March 29, 2012

1. On November 28, 201, the Defendant revoked the disposition that the Plaintiff excluded the Plaintiff from the recipients of the housing site supply.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On August 5, 2008, the Defendant is the executor of the housing site development project for the memorial district, the development plan of which is approved under Article 2008-393 of the Ministry of Construction and Transportation’s notification, (hereinafter “instant project”).

B. On October 2, 1992, the non-party's father newly constructed a house on the ground (hereinafter "the instant house") located within the area of the project of the instant case by obtaining a building permit from the Sungnam-si mayor, Sungnam-gu, Sungnam-gu, Seoul-si, which was located within the instant project area, but did not obtain approval from the competent administrative agency for the use of the said house. The plaintiff completed the registration of ownership transfer on the instant building site for the reason of the division of inherited property on August 24, 2003, the non-party's death, but also did not obtain approval from the competent administrative agency for the use of the instant house.

C. On November 28, 2011, the Plaintiff filed an application with the Defendant for the selection of a person eligible to be supplied with the instant housing site, but the Defendant notified the Plaintiff that he was unable to be selected as a person eligible to be supplied with the said housing site on the ground that “the instant housing was not approved for use, and the registration was not completed” (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 2, 4, 5, Eul evidence 2-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The arguments and issues

The Plaintiff asserts that Article 40(3)1 of the former Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Presidential Decree No. 23452, Dec. 28, 2011) excludes the owner of an unauthorized building as a person subject to relocation measures. As such, the Plaintiff, who acquired a building permit from the Nonparty, owned the instant house that was newly constructed by the Nonparty, does not clearly constitute an owner of an unauthorized building excluded from the person subject to relocation measures pursuant to the said provision. However, the Defendant issued the instant disposition that the Plaintiff or the Nonparty excluded the Plaintiff from the person subject to relocation measures on the ground that the Plaintiff or the Nonparty did not obtain approval for the use of the instant house or did not complete the registration, and thus, the instant disposition was unlawful.

Accordingly, the defendant asserts that the approval of use under the Building Act is a disposition to confirm that the building was constructed in accordance with the building permit, and that the building permit is included. Thus, it is reasonable to view that the building that did not obtain approval of use, such as the housing of this case, constitutes an unauthorized building under Article 40 (3) 1 of the Enforcement Decree of the former Public Works Act, and therefore, the disposition of

Ultimately, the key issue of this case is whether a building constructed with a building permit but not approved for use constitutes an unauthorized building under Article 40(3)1 of the former Enforcement Decree of the Public Works Act.

B. Determination

Article 40(3)1 of the former Enforcement Decree of the Public Works Act provides that relocation measures for migrants who lose their base of livelihood due to the implementation of public projects shall restore their previous living conditions to the original state and at the same time be provided as part of livelihood compensation in order to ensure a decent life. As such, it conforms to the purport of the system to ensure that migrants who lose their base of livelihood due to the implementation of public projects can benefit from relocation measures as much as possible. Article 40(3)1 of the former Enforcement Decree of the Public Works Act excludes unauthorized or unreported buildings subject to relocation measures, but does not provide any provision for buildings that are not subject to approval for use. The Building Act distinguishess unauthorized or unreported buildings from their requirements and effects. Furthermore, approval for use under the Building Act is a kind of act of confirming the nature of the river law quasi-legal and administrative act, and thus, it is different from the act of building permission or reporting for use under the Building Act that is not subject to permission or reporting for use under the former Enforcement Decree, and thus, it does not conflict with the act of building owner without obtaining permission for use permission or reporting for use.

In light of various circumstances, the owner of a building which was constructed with a building permit but failed to obtain approval for use cannot be deemed to constitute an owner of an unauthorized building under Article 40(3)1 of the former Enforcement Decree of the Public Works Act (However, if a building cannot be deemed to have been constructed entirely differently from the building permit, it can be deemed to constitute an unauthorized building as stipulated in the above provision. However, in this case, considering the overall purport of the pleadings in the written evidence Nos. 3, 14, and 15, the instant house seems not to have been completely constructed differently from the building permit).

Therefore, since the instant housing constitutes a building subject to relocation measures, the instant disposition, excluding the Plaintiff, who is the owner of the instant housing, is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Cho Jong-ho (Presiding Judge)