[토지수용재결처분취소등][공1998.7.15.(62),1893]
In case where a lawsuit was changed to seek cancellation of adjudication on expropriation or payment of increased compensation while seeking the revocation of adjudication on expropriation or payment of increased compensation, whether whether the period for filing a lawsuit can be determined as at the time of the initial lawsuit (negative)
In a case where the Central Land Expropriation makes an objection against the said Committee and the Republic of Korea to seek an increased payment of compensation on the ground that the part of the said adjudication on expropriation determined the amount of compensation for the said goods is illegal, and there is an objection against the said Committee and the Republic of Korea to seek an increased payment of compensation under the premise that the said adjudication partially accepted the objection, and only one month has passed after the filing period of a lawsuit from the date the written adjudication was served, and the purport of the purport of the adjudication is modified to seek an increased payment of compensation under the premise that some of the parts of the said adjudication determined the amount of compensation for the said goods were revoked, it shall not be deemed to seek a cancellation of the said adjudication according to the contents of the relevant complaint or the briefs, and in any form, there was no objection raised to the purport that the said committee claims the illegality of the said adjudication within the legitimate filing period of a lawsuit against the said adjudication, and therefore, the part seeking an increase in compensation against the Republic of Korea, which is in a relationship of necessary co-litigation
Articles 73 and 75-2 of the Land Expropriation Act, Articles 235 and 238 of the Civil Procedure Act
Plaintiff (Attorney Lee In-bok, Counsel for plaintiff-appellant)
Central Land Tribunal and one other
Seoul High Court Decision 96Gu10463 delivered on May 7, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. Regarding ground of appeal No. 1
According to the provisions of Articles 73 through 75-2 of the Land Expropriation Act, if there is an objection against the adjudication by the Central Land Expropriation Committee or the local Land Expropriation Committee, the objection shall be filed within one month from the date of receiving the original copy of the adjudication, and if there is an objection against the said adjudication by the Central Land Expropriation Committee, the said adjudication shall be filed within one month from the date of receiving the written adjudication.
According to the reasoning of the judgment below, when the plaintiff filed the lawsuit of this case on April 1, 1996, the court below acknowledged that the Central Land Expropriation Committee's decision on October 10, 1995 on the expropriation of this case applied for the payment of increased compensation under the premise of cancellation of the part concerning the goods subject to expropriation of this case and cancellation thereof, on the ground that the part concerning the expropriation of this case, which was owned by the plaintiff, was illegal, and the Central Land Expropriation Committee and the defendant Republic of Korea, made an objection against the defendant Central Land Expropriation Committee's decision on May 7, 1996, which partly accepted the plaintiff's objection, and its ruling was delivered to the plaintiff on October 16, 1996, the court below rejected the plaintiff's claim for cancellation of the adjudication of this case and its legal reasoning on the ground that the plaintiff's claim for cancellation of the adjudication as to the above part of this case's claim for cancellation of the adjudication and its legal reasoning cannot be viewed as unlawful.
The Supreme Court Decision 95Nu7949 Decided December 10, 1996 pointing out in the grounds of appeal is not appropriate to invoke the case as it differs from this case. Thus, the argument on this point is not acceptable.
2. Regarding ground of appeal No. 2
Whether the period of filing a lawsuit is complied with or not as a matter of ex officio investigation, and the court must investigate and determine ex officio (see Supreme Court Decision 82Nu7 delivered on December 28, 1982). Thus, it cannot be said that the defendant asserted that the period of filing a lawsuit of this case was too too late, or that the court below rejected the lawsuit of this case due to the lapse of the period of filing a lawsuit of this case, and that it did not violate the good faith principle.
3. Therefore, the appeal is dismissed and all 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 Final Young-young (Presiding Justice)