[토지수용재결처분취소등][공1995.7.15.(996),2412]
Article 6-2 (2) and (3) of the Enforcement Rule of the former Enforcement Rule of the Compensation for Public Loss;
Article 6-2 (2) and (3) of the former Enforcement Rule of the Public Use of Land (amended by Ordinance of the Ministry of Construction and Transportation No. 3, Jan. 7, 1995) refers to a road (excluding a road constructed by the Saemaeul Corporation) that is not determined by urban planning for the convenience of one’s own land by a landowner at the time of opening the road. In this case, whether a landowner has constructed it for the convenience of one’s own land shall be objectively determined by the size of the adjoining land, ownership, status of use, details of the construction, purpose of the construction, surrounding environment, etc. Therefore, even if a road is naturally created by a long-term provision for passage of many unspecified persons without the determination of urban planning (city), it constitutes a de facto private road, and even if a road is determined by urban planning, it constitutes a case where a decision of urban planning was made after a private road or a de facto private road under the Private Road Act was installed for a certain period of time. However, it does not constitute land in which the landowner can exercise his ownership even if part of the land is supplied for
Article 57-2 of the Land Expropriation Act, Articles 6, 6-2(2), and 6-2(3) of the former Enforcement Rule of the Public Land Expropriation Act (amended by Ordinance of the Ministry of Construction and Transportation No. 3, Jan. 7, 1995)
[Plaintiff-Appellant] Plaintiff 1 and 760 (Gong1987,581) and 89Nu1056 (Gong1989,1511) and 92Nu17259 (Gong193Ha, 1902) delivered on September 12, 1989
[Judgment of the court below]
Central Land Tribunal and one other Defendants (Attorney Cho Yong-sik et al., Counsel for the defendant-appellant)
Seoul High Court Decision 93Gu23635 delivered on October 19, 1994
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal Nos. 1 and 2 are examined together.
1. In calculating the amount of compensation for losses due to expropriation. In light of the provisions of Articles 6(7) and 6-2 of the Enforcement Decree of the Public Land Expropriation Act (amended by Ordinance of the Ministry of Construction and Transportation No. 3, Jan. 7, 1995; hereinafter the same shall apply), which are applicable mutatis mutandis under Article 57-2, the compensation shall first be assessed by presenting the current status as at the time it is to be incorporated into the previous public project: Provided, That if it is impossible to know the current status as at the time it is to be incorporated into the previous public project, it shall be assessed within the scope not exceeding 1/5 of the appraised amount of nearby land; and if it is assessed within the scope not exceeding 200,000,000 won, it shall be assessed within the scope not exceeding 9/10,000 of the appraised amount of the land actually established in the neighboring private road under the Private Road Act, it shall be determined within the scope not exceeding 9/15,000 of the appraised amount of the land.
2. A. According to the reasoning of the judgment below, each appraisal based on the calculation of compensation for losses at the time of the ruling of this case is assessed by multiplying the land of this case by 1/5 of the comparison of individual factors with the reference land in light of the private road under Article 6-2 of the Enforcement Rule of the Act on Special Cases concerning Land, but the land of this case was established with a ironway for transporting stone, etc. after the construction of the Japanese New Airport (GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG.
B. In sum, the argument of theory is just in rejecting the plaintiff's argument that the land in this case is not based on the premise that the actual use of the land in this case at the time of the ruling of expropriation is a road or its evaluation, but it is not based on the premise that it is a road, and in light of the relevant laws and regulations and records, the above recognition and the judgment of the court below are somewhat inappropriate in light of the relevant laws and regulations, but it does not constitute a case where the utilization status before the land in this case is to be a road, and it does not constitute a case where the land in this case should be evaluated in light of the relevant laws and regulations and regulations and the Supreme Court precedents, such as the theory of lawsuit, and there is no error of law such as violation of the Constitution
All arguments are without merit.
3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)