2015Da17647 Undue gains

1. A;

2. B

3. C.

4. D;

5. E.

6. G.

7. H;

8. I

9. J.

10. K

Es. Es.S.P

Seoul High Court Decision 2013Na32774 Decided February 4, 2015

September 10, 2015

The part of the lower judgment against the Defendant against Plaintiff B and J is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals by the Defendant against the remaining plaintiffs except Plaintiffs B and J are dismissed. The costs of appeal against the plaintiffs except Plaintiffs B and J 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. As to the grounds of appeal Nos. 1 and 2

A. As to the Defendant’s assertion that (1) Plaintiff B and J constitutes grounds for excluding those subject to statutory relocation measures under Article 40(3)1 and 2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Dec. 30, 2007; hereinafter “former Public Works Act”) and Article 78(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 20722, Feb. 29, 2008; hereinafter “former Enforcement Decree of the Public Works Act”), the lower court held that the Defendant’s assertion constitutes grounds for excluding those subject to statutory relocation measures under Article 40(3)1 and 2 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “former Enforcement Decree Article 6”).

In the case of an unauthorized building constructed before January 24, 1989, even if the time of acquisition of ownership was after January 24, 1989, it shall be deemed that it does not constitute an unauthorized building under Article 40(3)1 of the Enforcement Decree of the former Public Works Act. ② Under the premise that a person who meets the requirements of ownership and residence as of the date of public announcement of the compensation plan for each district of Eunpyeong-gu Seoul Urban Development Project for 3,492,4210 Districts, etc. (hereinafter “instant Development Project”), as of the date of public announcement of the compensation plan for each district, shall be considered as a person subject to relocation measures as prescribed by the former Public Works Act and the former Public Works Act, the Plaintiff B and the J established and continued to reside in the relevant housing or building constructed before January 24, 1989, and thus, it does not constitute a ground for exclusion of persons subject to relocation measures under Article 40(3) of the former Enforcement Decree of the Public Works Act, and thus, the Defendant is obligated to return the facilities to the Plaintiffs under Article 78(1) of the former Public Works Act.

B. Article 6 of the Addenda to the Enforcement Decree of the Public Works Act provides that "the owner of a building constructed without obtaining permission or filing a report as of January 24, 1989 without obtaining such permission or filing a report shall be included in the person subject to relocation measures, notwithstanding Article 40 (3) 1." In light of the language and details of the foregoing Addenda provisions and the background leading up to introduction, and the purport and structure of each subparagraph of Article 40 (3) of the Enforcement Decree of the former Public Works Act stipulating a person ineligible for relocation measures, where an unauthorized building already constructed at the time of January 24, 1989 is an unauthorized building, the above Addenda provision aims to exceptionally exclude the owner from applying Article 40 (3) of the Enforcement Decree of the former Public Works Act among the requirements subject to relocation measures under each subparagraph of Article 40 (3) of the former Enforcement Decree of the Public Works Act. It does not mean that the scope of relocation measures should be included in the scope of the person subject to relocation measures until ownership or right to de facto disposal of the building without permission.

The lower court’s determination that even if the pertinent unauthorized building was constructed on or before January 24, 1989, and acquired after January 24, 1989, it did not constitute a ground for exclusion from relocation measures under Article 40(3)1 of the former Enforcement Decree of the Public Works Act is justifiable in accordance with the above legal doctrine. In so doing, it did not err by misapprehending the legal doctrine under Article 6 of the Addenda of the Enforcement Decree and Article 186 of the Civil Act. However, the lower court’s determination that the Defendant was liable to install basic living facilities against the said Plaintiffs on the premise that the Plaintiff B and the J constituted a person subject to relocation measures under the former Public Works Act and the former Public Works Act

(1) According to Article 23 of the former Urban Development Act (amended by Act No. 8376 of Apr. 11, 2007), Article 78(1) of the former Public Works Act, and Article 40(3)2 of the former Enforcement Decree of the Public Works Act, a project implementer provides residential buildings due to the implementation of an urban development project.

However, the owner of a building who does not continuously reside from the date of public notification under the relevant Acts and subordinate statutes to the date of conclusion of the contract or the date of expropriation of the building is excluded in principle from the person subject to relocation measures, in accordance with the Enforcement Decree of the former Public Works Act, for the purpose of being deprived of the basis of livelihood (hereinafter referred to as the "area subject to relocation measures"), or who does not reside in the building from the date of public notification under the relevant Acts and subordinate statutes to the date of conclusion of the contract.

Meanwhile, Article 21(2) of the former Urban Development Act provides that the Act on Public Works shall apply mutatis mutandis to the expropriation of land, etc. necessary for an urban development project, except as otherwise provided for in the above Act. While the former Public Works Act delegates specific regulations on the establishment, etc. of relocation measures to the Presidential Decree pursuant to Article 78(1), the main text of Article 78(4) provides that "the details of relocation measures shall include basic living facilities at an ordinary level (hereinafter referred to as "basic living facilities"), such as roads, water supply facilities, drainage facilities and other public facilities, etc., in the relocation area (including a housing complex constructed by the implementation of relocation measures), and directly provides that the project operator shall bear the expenses incurred in installing basic living facilities in the relocation area."

(2) In a case where the pertinent law that requires the application of the former Public Works Act to the land expropriation procedure plans for the public inspection of residents, etc. other than the public announcement of project approval, the date of public announcement of project approval under Article 40(3)2 of the former Enforcement Decree of the Public Works Act, which serves as the basis for a person subject to relocation measures, may include not only the date of public announcement of project approval, but also the date of public announcement of project approval under the relevant law for public works (see Supreme Court Decision 2007 13340, Feb. 26, 2009). However, the standard for determining whether a person subject to relocation measures under the relevant law falls under a person subject to relocation measures as prescribed by the relevant law, must be individually specified in accordance with the relevant laws and regulations. Since the subject of application of Article 78(4) of the former Public Works Act, which is a mandatory provision, should be objectively consistent, it is reasonable to interpret the legal base for relocation measures as one of the criteria for the application of the said Act. If a project implementer can choose one of two or more.

In addition to these circumstances, in full view of the procedures for the implementation of public works under the Urban Development Act and the policy needs to prevent speculative transactions following the implementation of such projects, it is reasonable to deem that the legal relocation measures base date falling under Article 7 of the former Urban Development Act and Article 9-2 of the former Enforcement Decree of the Urban Development Act (amended by Presidential Decree No. 18738, Mar. 12, 2005) is the public inspection and announcement date of the designation of an urban development zone pursuant to the main sentence of Article 40(3)2 of the former Enforcement Decree of the Public Works Act on the basis of this,

Article 78(4) of the former Public Works Act, which requires a project operator to install basic living facilities and bear the expenses, shall be specifically applied to a person subject to measures for relocation as prescribed by this Act, and the above provision shall not be deemed to apply to a person subject to measures for relocation as well as a person subject to measures for relocation as a beneficiary of measures for relocation (Supreme Court).

Supreme Court Decision 2012Du22911 Decided July 23, 2015 and Supreme Court Decision 2014Da14672 Decided July 23, 2015

(3) The record reveals that the date of announcement for the public inspection of residents to designate the said 0 district as an urban development zone is January 15, 2004. According to the above legal principle, whether the said 0 district constitutes a person subject to the measures of relocation as prescribed by the Urban Development Act and the Public Works Act and subordinate statutes applicable to Article 78(4) of the former Public Works Act shall be determined as of the date of the public inspection announcement.

However, according to the facts and records admitted by the court below, the plaintiff B and J can only know the fact of moving-in to the building in question after January 15, 2004. Thus, the court below should have deliberated whether the above plaintiffs fall under Article 40 (3) 2 of the former Enforcement Decree of the Public Works Act when based on January 15, 2004, which is the public inspection and announcement date.

Nevertheless, the lower court did not examine this issue solely on the ground that Plaintiff B and Plaintiff J filed a move-in report prior to the date of public announcement of the relevant district compensation plan, and determined that the said Plaintiffs constituted a person subject to relocation measures to be subject to Article 78(4) of the former Public Works Act.

In so determining, the lower court erred by misapprehending the legal doctrine on the criteria for classification of persons subject to relocation measures prescribed by the former Urban Development Act and the former Public Works Act and the subject of application of Article 78(4) of the former Public Works Act, and failing to exhaust all necessary deliberations,

2. As to the third ground for appeal

For reasons indicated in its holding, the lower court rejected the Defendant’s assertion that the Defendant ought to calculate the basic cost for living facilities based on the area obtained without compensation from the State or a local government after deducting 252,524 square meters. Examining the record in accordance with relevant legal principles, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on Article 78(4) of the former Public Works Act

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant against the plaintiff B and J is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals against the plaintiffs except the plaintiff B and the plaintiff J are dismissed, and the costs of appeal against the plaintiffs except the plaintiff B and the plaintiff J are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Park Sang-ok