[1] Whether the owner of a residential building to be incorporated into a public works project implementation zone or the household member who is not a tenant can seek a direct payment of the relocation cost against the project implementer (negative)

[2] The case holding that the judgment below which held that Eul has the right to claim for the cost of relocation of a house in the housing site development project district is erroneous in the misapprehension of legal principles, in case where Eul filed a claim for the payment of the cost of relocation of a house with the project operator by asserting that Eul, who was excluded from the subject of compensation, was residing together in the housing site at the time of the public announcement of the project approval,

[1] In light of Article 78(5) and (7) 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 “former Act”), Article 54(1), (2), and (3) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance No. 126 of Apr. 12, 2007; hereinafter “former Enforcement Rule”), the contents, form, and method of calculating relocation expenses, etc., the housing relocation expenses under the former Act and the former Enforcement Rule enacted pursuant to its delegation shall be deemed to have been paid to the owner or the tenant according to the number of household members, and thus, a household member who is not the owner or the tenant may not seek direct payment against the project implementer.

[2] In a case where a housing owner Gap, who is located in a housing site development project district, resided with a project operator and three family members (the wife, children, and mother), received housing relocation expenses for four family members from the project operator, and the father Eul, who was excluded from compensation after the public announcement of the project approval, together with the housing at the time of the public announcement of the project approval, claimed payment of housing relocation expenses to the project operator, the case holding that the court below erred in the misapprehension of legal principles on the ground that the non-owner family members cannot seek direct payment of housing relocation expenses against the project operator

[1] Article 78(5) and (7) 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) (see current Article 78(9)); Article 54 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance No. 126 of the Ministry of Construction and Transportation of Apr. 12, 2007) / [2] Article 78(5) and (7) 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) (see current Article 78(9)); Article 54 of the Enforcement Rule of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance No. 1266 of Apr. 12, 2007)

Plaintiff

Korea Land and Housing Corporation (Attorney Song Dong-ho, Counsel for defendant-appellant)

Daejeon High Court Decision 2009Nu2373 decided January 21, 2010

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

Article 78 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Act”) provides that “the residents of a residential building shall be compensated by calculating the cost necessary for the relocation of their residence and the cost necessary for the transportation of movable property, such as household tools, etc. (paragraph (5)). The compensation under the provisions of paragraph (5) shall be governed by the standards as prescribed by the Ordinance of the Ministry of Construction and Transportation (paragraph (7).” Article 54 of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Ordinance of the Ministry of Construction and Transportation No. 126 of Apr. 12, 2007; hereinafter “former Enforcement Rule”) provides that the monthly average relocation cost of the residential building to be incorporated into a zone where public works are performed shall be compensated by two months or more according to the provisions of paragraph (1) of the same Article (the Act).

In light of the contents, form, and calculation method, etc. of the above regulations, the housing relocation expenses prescribed by the former Act and the former Enforcement Rule enacted pursuant to the delegation thereof are paid to the owner or the tenant according to the number of household members, and the owner and the tenant shall be deemed to have the right to claim the payment thereof. Therefore, the household members who are not the owner or the tenant shall not seek the payment of the housing relocation expenses directly against the project implementer.

According to the reasoning of the judgment below, the court below acknowledged the following facts in full view of the adopted evidence, i.e., the ownership of Nonparty 1, the Plaintiff’s children, and Nonparty 1, upon the implementation of the project of this case, agreed on compensation for the housing of this case with the Defendant on December 30, 2005, and received expenses for moving a house from the Defendant 4 for the reason that he resided in the housing of this case with three family members (the wife, children and mother, and Nonparty 2, the Plaintiff’s wife, and the Plaintiff’s wife), and determined that the Plaintiff may directly claim payment of moving a house of this case as of December 16, 2003, which is the public announcement of the project approval of this case, and thus, the Defendant is liable to pay the difference between the Plaintiff and the Plaintiff, a member of the household who is the owner and the Plaintiff, after deducting the moving expenses for moving a house of this case from five family members.

However, in light of the above legal principles, since non-owner's household members cannot seek reimbursement of the cost of moving a house directly against the project implementer, the judgment of the court below which accepted the plaintiff's claim for the cost of moving a house on a different premise is erroneous in the misapprehension of legal principles as to the claimant for the cost of moving a house, which affected the conclusion of the judgment. The ground of appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Lee In-bok (Presiding Justice)