[토지수용이의재결처분취소][공2003.2.15.(172),515]
Criteria for determining whether a road, other than a private road, under Article 6-2 (1) 2 of the Enforcement Rule of the Public Compensation for Losses and Losses Act, falls under the "private road."
Article 6-2(1)2(a) of the Enforcement Rule of the Special Act on the Compensation for Public Loss and the Compensation for Losses, Etc., stipulates that the site of a road other than a private road under the Private Road Act shall be assessed within 1/3 of the appraised amount of neighboring land. However, in light of the provisions of Article 23 of the Constitution on the Guarantee of Property Rights and Article 4 of the Special Act on the Compensation for Public Loss and Compensation for Losses concerning the Methods, Criteria, etc. for the Acquisition of Land, etc. for Public Works, the site of a road other than a private road under the Private Road Act shall not be assessed within 1/3 of the appraised amount of neighboring land, unless objective circumstances are recognized that the relevant landowner may compensate at a lower price than that of neighboring land, such as providing the land to the public for the convenience of his/her own land by himself/herself, notwithstanding Article 6-2(1).
Article 4 of the Public Compensation for Loss, Article 6-2 (1) 2 of the Enforcement Rule of the Public Compensation for Loss
Supreme Court Decision 95Da23873 Decided March 8, 1996 (Gong1996Sang, 2412), Supreme Court Decision 96Nu13651 Decided April 25, 1997 (Gong1997Sang, 1651), Supreme Court Decision 96Nu13675 Decided July 222, 1997 (Gong197Ha, 2538), Supreme Court Decision 96Nu2569 Decided August 29, 197 (Gong197Ha, 297Ha, 2538), Supreme Court Decision 96Nu2569 Decided May 12, 1998 (Gong1997Ha, 2914), Supreme Court Decision 94Du39849 Decided 19684 Decided 197, 1995 (Gong1984, May 12, 1998)
Korea Exchange Bank (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)
Central Land Tribunal and one other (Seocho Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)
Seoul High Court Decision 2000Nu2343 delivered on April 18, 2001
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
Article 6-2(1)2(a) of the Enforcement Rule of the Special Act on the Compensation for Public Loss, Etc., stipulates that the site of a road other than a private road under the Private Road Act shall be assessed within 1/3 of the appraised amount of neighboring land. However, in light of the provisions of Article 23 of the Constitution on the Guarantee of Property Rights and the provisions of Article 4 of the Special Act on the Compensation for Public Loss, etc. concerning methods of and standards for compensating for losses arising from the acquisition of land for public projects, etc., the site of a road other than a private road under the Private Road Act shall not be assessed within 1/3 of the appraised amount of neighboring land, unless objective circumstances are recognized that the relevant landowner may compensate at a lower price than that of neighboring land, such as providing the land to the public for the convenience of his/her own land (see, e.g., Supreme Court Decisions 98Du13249, Dec. 8, 198; 9Du215, May 14, 1999).
In the same purport, the court below erred in calculating the appraised value by applying Article 6-2 (1) 2 of the Enforcement Rule of the Public Road Act to the site of a road other than a private road under the Private Road Act, since the portion of the land in this case among the land in this case was not used as a site for a building and provided as a part of the road due to the determination of urban planning facilities such as incorporation of the road site into a road site, but there is no objective circumstance that the said part should be compensated at a lower price compared to the neighboring land. Therefore, it is proper to determine that the instant judgment based on this is unlawful, and there is no error in the rules of evidence or in the misapprehension of legal
Therefore, all appeals are dismissed, and the costs of appeal are assessed and decided as per Disposition.
Justices Zwon (Presiding Justice)