Plaintiff (Law Firm Dongin, Attorney O-Support, Counsel for plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Woo, Attorneys Park So-jin, Counsel for defendant-appellant)

September 24, 2012

Suwon District Court Decision 201Guhap15689 Decided April 19, 2012

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On November 28, 2011, the defendant revoked the disposition that the plaintiff excluded from the recipients of the unsettled housing site.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except for adding the following judgments to the defendant’s argument in the court of first instance. Thus, this Court cited it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. The addition;

A. The defendant asserts that the establishment and implementation of the relocation measures are discretionary and that the disposition of this case, excluding the plaintiff, was made within the scope of discretion.

If the Defendant, a project executor, established measures for relocation and implementation of the relocation, violates the criteria themselves, such measures are unlawful. The Defendant’s establishment of measures for relocation on August 2008 and announced the establishment of the measures for relocation, and stated that the Defendant’s provision of the notification constitutes an unauthorized building, contrary to the criteria for relocation measures, since the Defendant’s provision of the housing site was based on the premise that, “The Defendant’s provision of the notification constitutes an unauthorized building,” the instant disposition is unlawful as it is based on the premise that: (a) a person who has continued to own the housing and has resided in the housing within one year before the date of the public announcement of the designation of the planned area for the development of the housing site; and (b) a person who has continued to reside in the housing after receiving compensation for the said housing from the Defendant; and (c) a person who has moved to the housing due to the implementation of the project.”

B. In addition, the Defendant asserts that the Plaintiff, the owner of the instant house, is not a person subject to relocation measures for the following reasons. In other words, according to Article 78 of the Public Works Act, Article 9(1) of the Rules on the Establishment and Implementation of Relocation Measures (hereinafter “Rules”) enacted by the Defendant pursuant to Article 40 of the Enforcement Decree of the said Act, the confirmation of the instant house shall be based on the certified copy of the building ledger, the certified copy of the building ledger, the certified copy of the building ledger, the certified copy of the tax ledger, or the certified copy of the building ledger issued by the head of the competent Eup/Myeon/Dong (hereinafter “certified copy, etc.”) and there is no certified copy, etc. of the building ledger for the instant house.

However, the established rules of this case (No. 3) merely stipulate the rules for the internal administration of the defendant as to the relocation measures, and it is not effective externally to the public or the court. Moreover, considering the purport of Article 78(1) of the Public Works Act, which is the basis for the relocation measures, the court can reasonably interpret the project operator’s intent as stated in the established rules of this case (see Supreme Court Decision 96Nu140672, Feb. 11, 1997; 96Nu140672, Feb. 11, 1997). Even if Article 9(1) of the established rules of this case provides that the confirmation of a house subject to relocation is based on a certified copy of the building ledger, if it is possible to confirm the house subject to relocation, the house subject to relocation should be recognized even without the certified copy of the building ledger. Article 9(2) of the established rules of this case also provides that where a house subject to relocation is an unauthorized building and it is difficult to verify by the method under paragraph (1).

In the instant case, the instant disposition is unlawful on the ground that the Plaintiff did not have a certified copy, etc. of the building ledger of the instant house, insofar as the Plaintiff does not meet the criteria for the Defendant’s relocation measures. This part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) Lee-soo-sover regime

1) Article 6 provides for the criteria for selection of eligible persons.

Note 2) Article 6-2(1) provides for special exceptions to “the requirements for house ownership and residence” among the criteria for the selection of eligible recipients provided for in Article 6.