208Du16599 Revocation of Disposition of Disqualified for Relocation Measures

Kim

Seoul L M

Es. Es.S.P

Seoul Gangnam-gu 14 - 5

Maximum President of the Representative

Law Firm Doz.

Attorney Kim Kim-soo

Law Firm Doz.

Attorney Kim, Pu, B, Kim, Kim, and Park

Seoul High Court Decision 2008Du4871 Decided August 28, 2008

March 12, 2009

The appeal is dismissed.

The costs of appeal 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. The former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007, hereinafter referred to as the "Urban Development Act").

Article 23 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter referred to as the "Public Works Act"), Article 78 (1) of the Act on the Acquisition of Land, etc. for Public Works and Article 40 (3) 2 of the Enforcement Decree of the Public Works Act provide that "the Public Works Act was implemented from January 1, 2003, and Article 3 of the Addenda of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor shall be deemed to have been performed under the provisions of this Act at the time this Act enters into force." Thus, the Act applicable to the relocation measures of this case or the disposition of this case shall be deemed to be the Public Works Act, which provides residential buildings due to the implementation of an urban development project, and the project operator shall establish and pay resettlement funds or relocation measures, but the project operator shall not be deemed to have established any person subject to relocation measures, who is not subject to relocation measures under the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and is not subject to relocation measures for the purpose of the Act.

2. According to the facts and records acknowledged by the court below, the following facts are revealed.

A. On November 20, 2002, the Mayor of Seoul Special Metropolitan City announced the plan for the development project of Pyeongtaek New Town on October 23, 2002, prior to the announcement as the base date for the relocation measures of this case. On November 25, 2002, the Mayor of Seoul Special Metropolitan City announced the plan through a daily newspaper, etc., for the purpose of preventing real estate speculation and disguised transfer, etc., as the defendant and the Mayor of Seoul Special Metropolitan City, who are project implementers of the development project of this case, anticipated that the long-term development project of the development project of this case would take place in the designation of an urban development zone and the development

B. According to the criteria for the relocation measures of Eunpyeong New Airport (hereinafter “the relocation measures criteria of this case”) announced by the Defendant on October 19, 2004, even if the person subject to the relocation measures who acquired the house within the project area prior to the date of the relocation measures of this case did not continue to reside in the relevant house by the date of the conclusion of the contract or the decision of expropriation, if the former household member had consulted on the compensation and voluntarily moved to a house outside the project area from the date of the date of the relocation measures of this case until the date of the public announcement of the compensation plan, he shall supply an apartment with the exclusive area of not more than 85mm2, and if not, it shall supply an apartment with the exclusive area of not more than 60m2, and if the person who acquired the house within the project area from the date of the relocation measures of this case until the date of the conclusion of the contract or the decision of expropriation of the compensation plan, he voluntarily agreed on the exclusive area of not more than 60m2 from the date of the relocation measures to the date of the public announcement of the compensation plan.

C. On May 1, 2003, after the base date of the relocation measures of this case, the Plaintiff purchased a square meter of 33.39 square meters of housing of Eunpyeong-gu Seoul IT ground (hereinafter "house of this case") from salt, and completed the registration of transfer under the name of the Plaintiff on June 3, 2003, and resided in the housing of this case after completing the registration of transfer under the name of the Plaintiff on November 19, 2004, and voluntarily relocated on January 6, 2005 in response to the Defendant's compensation agreement. Meanwhile, the Plaintiff's husband's husband's husband's husband's husband's husband's husband's husband's husband's 707 meters of the 707m square meters of the ground floor of Gangdong-gu, 65.84m of the 1st floor, 65.84m of the 2nd floor of this case, and completed the registration of transfer of ownership on June 31, 2003.

D. On June 7, 2007, on the Plaintiff’s application for the supply of apartment units, the Defendant rendered a non-resident notification to the person subject to the relocation measures (hereinafter “instant disposition”) on the ground that the Plaintiff does not fall under a non-resident under the criteria for the relocation measures of this case.

3. Examining the aforementioned legal principles and the above facts, the criteria for the relocation measures of this case do not designate a person who is not a person subject to the relocation measures as of November 25, 2002, which is the base date for the relocation measures, as of November 25, 2002. It is reasonable to deem that the criteria for the relocation measures of this case were determined as a group of persons who acquired the housing within the project area of this case, as of the date of the public announcement of the compensation plan, by taking into account the following factors: (a) whether they have resided continuously in the relevant housing until the date of the consultation contract and voluntary resettlement, the conclusion date of the consultation or the adjudication on expropriation; (b) whether the former household is non-resident outside the housing project area; and (c) whether the time of acquiring the

Therefore, even according to the criteria for the relocation measures of this case, the plaintiff acquiring the housing of this case before the date of the public notice of the compensation plan of this case ( around June 2004) shall be deemed to be a person subject to the relocation measures (Provided, That apart from what is the type and area of apartment to be supplied in the case of a person subject to the relocation measures who is obligated to establish and implement the relocation measures and a person who is obligated to pay the resettlement funds, and as a person who is obligated to establish and implement the relocation measures).

Therefore, the judgment of the court below which judged that the disposition of this case, which notified the plaintiff as disqualified, is unlawful because it does not constitute a person subject to the relocation measures for the urban development project of this case, is justified in its conclusion, and the judgment of the court below is not erroneous in the misapprehension of legal principles as to the base date for relocation measures or the person subject to relocation measures which affected the conclusion of the judgment as alleged in the ground of appeal.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul

Justices Park Jong-hwan

Justices Park Poe-young

Justices Noh Jeong-hee