[토지수용재결처분취소][공2006.3.1.(245),338]
Whether the expenses invested in operating a business or the profits expected to be obtained from such business are subject to compensation for losses (negative)
Article 51 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656 of Feb. 4, 2002) refers to a direct loss arising from the expropriation of land, buildings, etc. and the expropriation of such land, buildings, etc. and the expropriation of such land, buildings, etc. is impossible or restricted. Thus, the above provision does not constitute a basis for the payment of the invested expenses for operating the business or the profits expected to be accrued from such business, and there is no provision for the compensation of the losses, such as the former Land Expropriation Act or the former Act on the Special Cases Concerning the Acquisition of Land, etc. for Public Works and the Compensation Therefor (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor), the Enforcement Decree and the Enforcement Rule of the Land Expropriation Act shall not be subject to the said compensation.
Article 51 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Act No. 6656 of Feb. 4, 2002) (see current Article 77 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects), Article 23 (3) of the Constitution
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)
[Judgment of the court below]
One other than the Central Land Expropriation Committee
Gwangju High Court Decision 2002Nu1457 delivered on October 16, 2003
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
Article 23 (3) of the Constitution of the Republic of Korea provides that "the expropriation, use or restriction of property rights due to public necessity and compensation therefor shall be governed by the Act, but due compensation shall be paid (see Supreme Court Decision 93Nu2131 delivered on July 13, 1993) shall be deemed as reservation of the provisions of the Act as well as the standards and methods of compensation (see Supreme Court Decision 93Nu2131 delivered on July 13, 1993). The "business loss" stipulated in Article 51 of the former Land Expropriation Act (amended by Act No. 6656 of February 4, 2002; hereinafter the "former Land Expropriation Act") shall be deemed as a direct loss arising from the expropriation of the land, building, etc. subject to expropriation of the land or building, etc., which could not be carried on or becomes the basis of the provisions of the former Enforcement Decree of the Land Expropriation Act concerning compensation for losses (see Supreme Court Decision 200Du2311 delivered on July 29, 2005).
Examining the above legal principles in light of the records, although some of the court below's reasoning is not appropriate, the conclusion that the land in this case (it is not the land subject to expropriation) cannot seek compensation for the expenses invested in the development of groundwater and hot spring, construction design, etc., and the profits expected to be obtained through the above business in the future in order to promote tourism and resort business is just and acceptable, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the investment cost for business or compensation for the expected profits, etc., and it does not change because the plaintiff's investment in this case is because the plaintiff trusted the military policy that intends to promote tourism and resort business as the project implementer.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Hong-hoon (Presiding Justice)