In a case where a housing owner Gap newly constructed a house on the land located in a housing site development project zone with a construction permit from the competent administrative agency, but failed to obtain approval for use, applied to the Korea Land and Housing Corporation for the selection of a housing site supplier, and the Korea Land and Housing Corporation did not obtain approval for use, the case affirming the judgment below holding that the above disposition was unlawful.

In a case where a housing owner Gap newly built a house on the land located within a housing site development project zone with a construction permit from the competent administrative agency, but failed to obtain approval for use, applied for selection of migrants to the Korea Land and Housing Corporation as a project implementer, and the Korea Land and Housing Corporation notified residents of the exclusion from supply of the said housing site, the case affirming the judgment below holding that Article 40 (3) 1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 23425, Dec. 28, 201; hereinafter “former Enforcement Decree of the Public Works Projects”) does not stipulate any provision regarding a building that is not subject to approval for use on the ground that the said housing was not subject to approval for use, but is not subject to the construction permit and the construction permit without permission, and it is not subject to approval for use under Article 40 (3) 1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “former Enforcement Decree of the Public Works Projects”).

Article 40(3)1 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 23425, Dec. 28, 201)

Plaintiff (Law Firm LLC, Attorneys Lee Jong-hun et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Woo, Attorneys Mayang-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu13322 decided October 15, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

According to the reasoning of the lower judgment and the reasoning of the first instance judgment as cited by the lower court, since relocation measures stipulated by the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor are a system established as part of livelihood compensation in order to restore the former living conditions of migrants who lose their base of livelihood following the implementation of public work to their original state and at the same time to ensure a decent life, it accords with the purport of the system to allow the migrants who lose their base of livelihood following the implementation of public work to benefit from relocation measures as much as possible. 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. 23425, Dec. 28, 2011; hereinafter “former Enforcement Decree of the Public Works Act”), the lower court determined that the building falls under 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, but does not fall under the scope and effect of the building permission for use.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of unauthorized buildings under Article 40 (3) 1 of the former Enforcement Decree of the Public Works Act, as alleged in the grounds of appeal

The Supreme Court precedents, etc. cited in the grounds of appeal are different from this case and are inappropriate to be invoked in this case.

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 Lee In-bok (Presiding Justice)