[1] Purport of the proviso of Article 11(1)1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones and Article 13(1) [Attachment 1]3 of the Enforcement Decree of the same Act, and whether transfer or acquisition of the right to file an application for permit for relocation of houses within development restriction zones can be made (negative)

[2] Meaning of “a deceitful or other unlawful means” under Article 30 subparag. 2 of the former Act on Special Measures for Designation and Management of Development Restriction Zones, and whether an act of obtaining a permit for relocation permission upon filing an application under the name of the owner of the house at the time of removal of the right constitutes a case where a person who did not acquire the right to file an application for relocation permission in the name of the owner of the house

[1] Article 11 (1) 1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005) and Article 13 (1) (c) and 13 (1) [Attachment 1] 3 of the Enforcement Decree of the same Act permit the relocation of houses within development restriction zones. The purport of the permission is to keep a living base for the relevant person in a development restriction zone in a case where certain conditions are met, such as where the existing house is removed due to the implementation of public works, etc., and the existing house is lost due to the removal of the existing house, etc., if the person who has no right to file an application for the relocation permission, and thus, the person who has continued to prepare for his living basis, does not want to give certain property benefits in return for the removal of the existing house. Therefore, an application for the relocation permission can only be filed as the owner of the house at the time of removal.

[2] Article 30 subparagraph 2 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005) refers to a case where permission is obtained by using deceptive scheme or any other act deemed unfair by social norms despite that it is impossible to obtain permission through normal procedures. If a person who has no right to file an application for a relocation permit obtains a relocation permit by filing an application under the name of the owner of the house at the time of removal after acquiring the right to file an application for relocation permit from the owner of the house at the time of removal, it constitutes a case where permission is obtained by fraudulent or other unlawful means as stipulated in Article 30 subparagraph 2 of the same Act.

[1] Article 11 (1) 1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005); Article 13 (1) [Attachment 1] 3 of the Enforcement Decree of the Act on Special Measures for Designation and Management of Development Restriction Zones / [2] Article 30 subparagraph 2 of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383 of Jan. 27, 2005)

[1] [2] Supreme Court Decision 2002Do5197 Decided November 26, 2002, Supreme Court Decision 2006Do7187 Decided January 26, 2007 / [1] Supreme Court Decision 91Nu8128 Decided May 12, 1992 (Gong192, 1885) / [2] Supreme Court Decision 2003Do6490 Decided April 9, 2004, Supreme Court Decision 2004Do7359 Decided January 28, 2005

Defendant

Defendant

Attorneys Han Chang-chul et al.

Incheon District Court Decision 2006No1280 Decided November 16, 2006

The appeal is dismissed.

We examine the grounds of appeal.

1. Article 11(1)1 (c) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383, Jan. 27, 2005; hereinafter “Development Restriction Act”) and Article 13(1) [Attachment 1] 3 of the Enforcement Decree of the Development Restriction Act allow relocation of houses within development restriction zones. The purpose of this Act is to ensure that a person, who had a living ground in development restriction zones, continues to prepare and give his living basis to the person concerned in order to prepare a certain pecuniary benefit in return for removal of existing houses, and thus, an application for postponement permission under the above provision is limited to the housing owner at the time of removal (see Supreme Court Decision 91Nu128, May 12, 1992). Therefore, even if a person, who does not have a right at the time of removal, is entitled to acquire the right at the time of removal, he/she may file an application for postponement of the right with the owner at the time of removal.

In addition, Article 30 subparagraph 2 of the Development Restriction Act refers to a case where permission is obtained using deceptive scheme or any other act deemed unfair by social norms, even though permission is not possible in accordance with normal procedures (see Supreme Court Decision 2004Do7359 delivered on January 28, 2005).

Ultimately, even if a person who does not have the right to file an application for a permit for a permit for a permit for a relocation has entered into a transfer contract with the housing owner at the time of the removal, the right cannot be acquired, and if a person who did not acquire the right to file an application for such permit applies for a permit in the name of the housing owner at the time of the removal of the right, it constitutes a case where permission is obtained by fraudulent or other unlawful means as provided in Article 30 subparagraph 2 of the Development Restriction Act (see Supreme Court Decision 2003Do6490, Apr. 9, 2004).

The decision of the court below to the same purport is just, and there is no violation of the law as to the violation of precedents or the development restriction law as alleged in the grounds of appeal.

2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)