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(영문) 서울고법 1986. 1. 14. 선고 85나2894 제7민사부판결 : 확정

[보상금청구사건][하집1986(1),1]

Main Issues

In case of an objection against the amount of compensation for losses caused by adjudication rendered by the Central Land Expropriation Committee on an objection;

Summary of Judgment

If any person is dissatisfied with an amount of compensation for losses caused by adjudication on an objection filed by the Central Land Expropriation Committee, the Central Land Expropriation Committee shall file an administrative lawsuit with the said Committee as a defendant to seek cancellation of such adjudication, and shall not claim an increase in compensation adjudicated by the said Committee through civil procedures.

[Reference Provisions]

Articles 73, 75, and 75-2 of the Land Expropriation Act

Plaintiff and appellant

Plaintiff

Defendant, Appellant

Seoul Metropolitan Government

Judgment of the lower court

Seoul Central District Court (85Gahap2277) in the first instance trial

Text

1. This appeal is dismissed.

2. The plaintiff's preliminary claim is dismissed.

3. All the costs of the lawsuit after the appeal shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the court below shall be revoked.

The Defendant shall pay to the Plaintiff the amount of KRW 77,398,00 and the amount at the rate of 25 percent per annum from the following day of service to the full payment. If the above claim is without merit, the Defendant shall pay to the Plaintiff the above amount as unjust enrichment.

The costs of lawsuit shall be borne by the defendant in both the first and second trials, and the declaration of provisional execution (the preliminary part of the claim is added to the trial).

Reasons

1. The plaintiff, as the result of Gap evidence 2, Gap evidence 6, Eul evidence 7, Gap evidence 9, Eul evidence 10, Eul evidence 1, Eul evidence 2-1, Eul evidence 3-1, Eul evidence 8-2, Eul evidence 8-2, Eul evidence 1, Eul evidence 9-2, Eul evidence 9-2, Eul evidence 10-2, Eul evidence 10-4, Eul evidence 10-2 through 11-2, Eul evidence 11-2 through 10-4, Eul evidence 9-2, Eul evidence 10-14, and Eul evidence 9-14, Eul evidence 10-2 through 11-1 (written ruling) and Eul evidence 8-1, which were found to be genuine to the plaintiff 9-1, the plaintiff 2, who had no objection to the construction of the above case and the plaintiff 4-1, which had no objection to the construction of the above case.

2. However, the Plaintiff’s primary cause of claim is the land adjacent to the instant land, which is similar to the instant land, and was incorporated into the road site due to the implementation of the urban planning as seen above, and was paid compensation for the said land in the amount of KRW 990,00 per square meter. The Plaintiff’s compensation for the instant land is too little less than KRW 568,250 per square meter, and thus, the Plaintiff sought compensation for KRW 77,398,000 per square meter, calculated at KRW 990,00,000 per square meter, as in the said land (number 2 omitted).

However, according to Article 73 (1) of the Land Expropriation Act, a person who has an objection to the adjudication of the Central Land Expropriation Committee may raise an objection to the Central Land Expropriation Committee. According to Article 75 of the same Act, the Central Land Expropriation Committee may cancel all or part of the original adjudication or change the amount of compensation if it is deemed that the original adjudication is illegal or unjust in the event of an objection. According to Article 75-2 of the same Act, an administrative litigation may be instituted within one month from the date on which the written adjudication is served, and if the adjudication is final and conclusive due to the failure to file a lawsuit within the said period, the final judgment under the Civil Procedure Act shall be deemed to have the same effect as the original judgment with executory power, and the original copy of the adjudication shall be deemed to have the same effect as the original judgment. Thus, the plaintiff's request for an increase of compensation by the Central Land Expropriation Committee under the Civil Procedure Act shall not be deemed to have been filed as the defendant, and the plaintiff's request for an administrative litigation against the original adjudication shall not be deemed to have been filed within 16 months of the original adjudication.

3. Although the plaintiff's claim is groundless, the defendant gains profits from using the land of this case owned by the plaintiff as a road and thereby causes losses to the plaintiff. Thus, the defendant is obligated to return the above amount of unjust enrichment to the plaintiff. However, in order to implement road expansion works between the Nam-dong and South-dong, the defendant obtained a legitimate approval of the project under the Land Expropriation Act, and requested compensation for the plaintiff, but the plaintiff did not comply with the request, and it cannot be deemed that the defendant illegally constructed the road on the land of this case without any legal ground, and since there is no other evidence to recognize it, the plaintiff's conjunctive claim on the land of this case under the premise that the defendant occupied the land of this case without any legal ground is no longer acceptable. Therefore, the defendant's conjunctive claim on the land of this case cannot be accepted.

4. If so, the plaintiff's primary claim of this case is unlawful and thus the lawsuit is dismissed. The judgment of the court below, which has the same conclusion, is just and dismissed as the plaintiff's appeal or the preliminary claim added in the court of appeal is without merit, and the costs of the lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

Judges Kim Young-jin (Presiding Judge)

참조조문

- 토지수용법 제73조 (위헌조문)

- 토지수용법 제75조

- 토지수용법 제75조의2 (위헌조문)

본문참조조문

- 토지수용법 제73조 제1항

- 토지수용법 제75조

원심판결

- 서울민사지방법원(85가합2277 판결)