2. B

1. Regarding ground of appeal No. 1

A. Article 5(1)14 of the former Urban Development Act (wholly amended by Act No. 8970, Mar. 21, 2008; hereinafter the same) provides that, at the time of designation of an urban development zone or even thereafter, land, buildings, or things attached to the land subject to expropriation or use, other than ownership rights, mining rights, fishing rights, and water use rights may be included and publicly notified in the development plan. Article 22(1) through (3) of the current Urban Development Act provides that the implementer of an urban development project shall apply mutatis mutandis to the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter referred to as the "Land Compensation Act"), and Article 5(1)14 of the Urban Development Act (wholly amended by Act No. 8970, Mar. 21, 2008; hereinafter the same shall apply) provides that when an implementer of an urban development project has publicly notified the "detailed title of land subject to expropriation or use" as a project approval and public notification under Article 20(1) and Article 222 of the former Urban Development Act (3).

Meanwhile, Article 66 (1) and (5) of the Urban Development Act provides that where a local public corporation, etc. established under the Local Public Enterprises Act installs new public facilities or public facilities replacing existing public facilities as an implementer, the previous public facilities shall gratuitously revert to the implementer, and the new public facilities shall gratuitously revert to an administrative agency in charge of managing such facilities (hereinafter referred to as the "management agency"), and the new public facilities shall gratuitously belong to the management agency in charge of managing such facilities after completion of an urban development project and on the date of notification of the kinds of public facilities and details of land to the management agency (hereinafter referred to

B. According to the reasoning of the judgment below and the records, the land No. 1 in this case was owned by the plaintiff No. 2, and the land No. 2 in this case was owned by the plaintiff No. 1. The land of this case was incorporated into the development project area of "F," which is an urban planning facility project (green), the implementation plan of which was approved and announced on Dec. 1, 199. The land of this case was expropriated on September 1, 200 by the Seoul Special Metropolitan City Mayor Mayor on Sep. 28, 200. ② The Mayor of Seoul Special Metropolitan City designated the land of this case No. 3,364,00 square meters including each of the land of this case as an urban development project of this case (hereinafter "urban development project of this case"), and announced the development plan of the plaintiff No. 2 to the head of the 30th Urban Development Project (hereinafter "Public Notice No. 1"), and the land of this case was included in the 20th Public Notice No. 2, the land of this case No. 2, including the land of this case No. 1.

C. On the premise of the aforementioned factual basis, the lower court determined that even if each of the instant land was included in the land tax control report on the ground that the land was still owned by Seoul Special Metropolitan City, the first public notice cannot be deemed as the public notice on the detailed list of the land subject to expropriation or use under Article 5(1)14 of the former Urban Development Act, and the second public notice is also included in the existing public facility record subject to gratuitous reversion, and it is difficult to view that the basis for expropriation was established through the third public notice on the ground that the second public notice was not included in the matters on the expropriation of each of the instant land. Accordingly, the lower court determined that the third public notice on the approval date of the project was based on October 1, 2012, which is the public notice on the approval date of the project.

D. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) Although an urban management plan, the contents of which are the abolition of the green area of this case, was finalized by the second public notice, it was already planned at the time of the first public notice to abolish the green area and incorporate the land of this case into the site of an urban development project. As such, each of the land of this case was likely to be subject to expropriation at the time of the first public notice, and in fact, each of the land of this case was expropriated as the site of the development project of this case as stipulated in the first public notice. Therefore, it is reasonable to deem that the Seoul Special Metropolitan City prepared a detailed report under the title of "the items of land, etc. and its owner, including each of the land of this case, and publicly notified it together through the first public notice constitutes a public notice of "specific items of land, etc. subject to expropriation" under Article 5 (1) 14 of the former Urban Development Act, and it is reasonable to deem that the project approval and public notice of each of the land of this case was made on December 28, 2007.

(2) Furthermore, the issue of whether the existing public facilities gratuitously reverted to a project implementer is determined pursuant to the instant gratuitous reversion provision, and it is not determined by the disposition of an administrative agency. Thus, even if Seoul Special Metropolitan City and the Defendant made a false public announcement of each of the instant land subject to expropriation after repurchase at the time of the second public announcement, barring any special circumstance, such as the fact that the Seoul Special Metropolitan City and the Defendant granted and publicly announced an implementation plan without exception from the “specific items of land, etc. subject to expropriation at the time of the second public announcement,” it cannot be deemed that the Defendant, the project implementer, was excluded

E. Nevertheless, on the grounds stated in its reasoning, the lower court calculated compensation for each of the instant lands on October 1, 2012, on the erroneous premise that the announcement date of the project approval was deemed to be October 1, 2012, which was the date of the third public notice. In so determining, the lower court erred by misapprehending the legal doctrine on the provision of project approval, etc., and by failing to exhaust all necessary deliberations as to whether each of the instant lands was continuously included in the items of land subject to expropriation until the second public notice, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out is with merit.

2. As to the ground of appeal No. 2, the land subject to expropriation shall be assessed based on the actual use situation at the time of the adjudication of expropriation, and the actual use situation thereof shall be objectively determined based on evidence. In addition, in calculating the amount of compensation for losses incurred by the expropriation of land, it is reasonable to assess the amount at a price that does not exclude development gains from the implementation of another project unrelated to the relevant public project (see, e.g., Supreme Court Decision 98Du8896, Jan. 15,

The court below held that the actual use of each of the lands of this case at the time of the decision to expropriate the land of this case should be considered as the "land that does not fall under any other land category" under Article 58 subparagraph 28 (c) of the Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records, on the following grounds: ① after incorporation into the green belt creation project of this case as to each of the lands of this case; ② the land of this case was changed from March 29, 2002 to the "park"; ③ because the green belt creation project of this case is not a park creation project; ③ the land of this case is not a park construction project; ④ the court appraiser of the first instance court is presumed to have maintained the "miscellaneous land" after the on-site investigation of each of the lands of this case; ⑤ there is no evidence to deem that the form and quality of each of the lands of this case was changed.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the actual use of each land

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok, Counsel for the appeal