[2] Whether a person who suffered loss in the remaining business facilities by including part of the business facilities for public works can immediately file a claim against the project implementer for compensation for the remaining business facilities pursuant to Article 47(3) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects without undergoing the adjudication procedure under Articles 34 and 50 of the former Act (negative)

[3] In a case where the competent Land Tribunal rendered an adjudication that a specific item of compensation falls under the scope of statutory compensation for the acquisition of and compensation for land, etc. for public works, thereby misunderstanding the facts or misunderstanding the legal principles, thereby not falling under the scope of compensation, the party against whom the compensation was brought a lawsuit (=an increase in compensation) and the party against

1. Requirements and procedures for compensation for losses for remaining business facilities;

A. Article 77(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Land Compensation Act”) provides for compensation for business losses, and Article 77(4) provides for matters concerning detailed calculation, etc. of compensation amount. Articles 46 and 47 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 131, Oct. 22, 2014; hereinafter “Enforcement Rule of the Land Compensation Act”) provide for the method of calculating the amount of compensation for business losses by dividing into cases of Article 46 and Article 47(3)1 of the same Act, one of such cases, “where part of business facilities are incorporated into public works projects, the remaining facilities cannot be newly installed or the remaining facilities cannot be repaired without installing or repairing them, the amount of business losses and expenses incurred in installing the relevant facilities shall be reduced in accordance with subparagraph 1(3).”

Such compensation for losses for remaining business facilities is compared with compensation for the remaining land under Article 73(1) of the Land Compensation Act and compensation for the remaining buildings under Article 75-2(1) of the Land Compensation Act. All of them are required to compensate for losses incurred to the remaining land, buildings, and business facilities by acquiring part of a group of land, buildings, and business facilities in order to implement public works by dividing them, and the legislative purpose is the same in that the project operator implements the principle of fair compensation under the Constitution only the same kind of the object acquired by the division. Therefore, when interpreting the above three requirements for compensation for losses, it shall be considered that the type of the subject matter of compensation differs from that of the subject matter of compensation under the Constitution, but it shall be identical to one another from the perspective of

If the price of the remaining land is reduced or other losses are incurred due to the acquisition of a part of a group of land belonging to the same landowner, it shall be liable for compensation for the remaining land even if it can be used for the previous purpose, and it shall not be eligible for compensation for the remaining land only if it is impossible or substantially difficult to use the remaining land for the previous purpose (see, e.g., Supreme Court Decision 97Nu4623, May 14, 199), which is the requirement for compensation for losses of the remaining business facilities (see, e.g., Supreme Court Decision 97Nu4623, May 14, 199).

B. Comprehensively taking account of the contents and legislative purport of Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the Land Compensation Act, in order to receive compensation for losses of the remaining business facilities from a project implementer pursuant to Article 47(3) of the Enforcement Rule of the Land Compensation Act, a person who incurred losses in the remaining business facilities due to the incorporation of part of the business facilities into the public works may obtain remedy for damages pursuant to the procedures provided for in Articles 83 through 85 of the Land Compensation Act only when he/she is dissatisfied with the said adjudication without undergoing the said adjudication procedure (see Supreme Court Decision 2009Du10963, Sept. 29, 2011, etc.).

The issue of whether a person has completed a decision shall be determined by each item of compensation. The type of land, goods, rights, or business is subject to compensation for losses, and furthermore, the basic unit of examining and determining the amount of compensation is the subject of compensation (see Supreme Court Decision 2017Du41221, May 15, 2018). Compensation for incorporated land and goods, compensation for obstacles, compensation for losses for remaining land and buildings, or compensation for expropriation of land and buildings, in principle, one item of compensation according to individual items. However, in the case of business compensation including compensation for losses for remaining business facilities, “total business as a single facility” is the subject of compensation, and the detailed business facilities, construction costs, and period of suspension, etc. are merely the elements to be considered in the calculation of the amount of compensation for business losses. Thus, the further detailed elements of calculating the amount of compensation within the scope recognized as uniform and identical to business operations are merely an attack method permitted within a single item of compensation, and thus no separate procedure of adjudication is required (see Supreme Court Decision 2015Du40444, Jul. 20, 2018).

In a case where the competent Land Tribunal rendered an adjudication that does not fall under the compensation subject to the compensation under the Land Compensation Act by misunderstanding facts or misunderstanding the legal principles, the person subject to compensation shall not institute a lawsuit against the competent Land Tribunal seeking cancellation of such adjudication, but shall file a lawsuit seeking increase or decrease of compensation under Article 85(2) of the Land Compensation Act against the project operator (see Supreme Court Decision 2008Du822, Aug. 19, 2010, etc.).

2. Facts

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. In order to carry out the housing site development project for the instant public project, the Defendant accepted some of the golf courses in installments of △△△△△△△△△△ golf course (hereinafter “instant golf course”), which is operated by the Plaintiff at the ( Address omitted omitted), the instant public project site development project.

B. On June 201, the Plaintiff asserted that the Plaintiff should compensate for any losses incurred in relation to the container business that was conducted with the relevant authorization and permission from the incorporated land, ② construction cost necessary to revise the lines of the remaining golf courses and the losses incurred in the suspension of the golf course during the construction period, etc. However, the Defendant filed an application with the competent Central Land Expropriation Committee for a ruling of acceptance under the pretext of “reward compensation” only for construction cost necessary to revise the lines of the remaining golf courses.

C. The Plaintiff asserted the same as in the procedure of the adjudication on expropriation, but the Central Land Tribunal rendered a ruling to accept only KRW 576,00,000 on September 2, 201 as compensation for losses, on the pretext of “the construction cost before the remaining golf courses.”

Upon raising an objection, on January 13, 2012, the Central Land Tribunal rendered an objection to the recognition of KRW 576,60,000 under the name of the “construction cost before the Balance Golf course” and KRW 1,219,000 under the name of the “construction cost before the Balance Golf course” as compensation for losses in relation to the container business conducted with the relevant authorization and permission on the incorporated land.

D. On February 28, 2012, the Plaintiff filed the instant lawsuit against the Defendant claiming compensation for the business suspension loss of golf courses during the construction period, including (1) loss related to the container business that had been conducted with the relevant authorization on the incorporated land, and (2) construction cost necessary to revise the line of golf courses, and (3) construction cost necessary to compensate for the business suspension loss during

3. Judgment on the Defendant’s grounds of appeal

A. Examining the foregoing facts in light of the legal principles as seen earlier, in the instant public works, part of the golf course was incorporated into the instant public works, and ① it was impossible to conduct the instant public golf course with the pertinent authorization and permission, and ② the remaining golf course alone resulted in losses, such as interfering with the operation of the instant golf course. If the remaining business facilities were to be incorporated into a part of the business facility, thereby causing losses to the instant public works, the losses incurred by the failure to conduct the business during the construction period, or the construction cost for resolving the said losses, and the losses incurred during the construction period, shall be compensated as losses or construction cost incurred from the remaining business facilities under Article 47(3) of the Enforcement Rule of the Land Compensation Act.

B. In applying Article 75-2(1) of the Land Compensation Act by applying mutatis mutandis Article 75-2(1) of the same Act, the lower court determined that the Defendant should compensate the Plaintiff for KRW 5,984,109,000 according to the result of the first instance court’s appraisal, and that the Defendant should compensate the Plaintiff for the remaining golf course repair work for KRW 386,00,000, as business suspension loss for four months, according to the result of the first instance court’s appraisal for the remaining golf course repair work.

Although it is inappropriate for the court below to find the legal basis of the duty to compensate for losses in analogical application of Article 75-2(1) of the Land Compensation Act, the conclusion that the defendant is obligated to compensate the plaintiff for the remaining expenses incurred in repairing the golf course and losses incurred in suspending business during the construction period is justifiable.

C. The Defendant asserted in the ground of appeal that the remuneration corporation’s appraisal result was excessive in relation to the scope of the remaining golf courses requiring repair and the period required for the repair work, and that the court below’s appraisal result was unlawful. However, this is not a legitimate ground of appeal as disputing the selection of evidence and the fact-finding which belong to the exclusive jurisdiction of a fact-finding court. Furthermore, even if examining the records in light of the records, the appraisal method of the first instance court’s appraisal result cannot be deemed as significantly erroneous, such as going against the empirical rule or unreasonable, and it is justifiable for the court below to recognize the remuneration cost of the remaining golf courses and the compensation amount for business suspension loss during the construction period. The court below did not err by exceeding the bounds of the principle of free evaluation

4. Judgment on the Plaintiff’s ground of appeal

As seen above, part of the instant golf course was incorporated into the instant public service, and the instant golf course was impossible to operate the instant golf course, and the remaining golf course alone incurred losses, such as interfering with the operation of the instant golf course. ① The losses occurred when part of the instant golf course was incorporated into the instant public service, and are included in the “compensation items” for the instant golf course’s business, which constitutes a single facility as a whole. The Central Land Expropriation Committee rendered substantive deliberation and determination in the acceptance ruling and its objection regarding the “compensation items” as “loss incurred to the instant golf course business by incorporating part of the instant golf course.” Various authorization and permission expenses related to the instant golf course business, which the Plaintiff asserted in the lawsuit, are merely the grounds for specifically dividing the “compensation items” which had already been subject to substantive deliberation and determination by the Central Land Expropriation Committee and in the instant ruling, the Plaintiff ought to be deemed to have been included in the “compensation items” under Articles 34 and 50 of the Land Compensation Act, and whether the costs of the instant golf course ought to be determined within the scope of the instant golf course’s judgment procedure.

Nevertheless, the lower court determined that a lawsuit seeking an increase or decrease of compensation is unlawful because the Plaintiff failed to take adjudication procedures on various authorization and permission costs related to the container business alleged in the lawsuit. The lower court erred by misapprehending the legal doctrine on the lawful requirements, etc. of a lawsuit seeking an increase or decrease of compensation and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of

5. Conclusion

The part of the judgment of the court below against the plaintiff is reversed, and this part of the case is remanded to the court below for a new trial and determination. The defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)