[2] The base point for determining whether a claim for compensation for losses occurred due to the implementation of a public project

[3] The case holding that the provisions on the compensation for losses under the Enforcement Rule of the Public Compensation for Losses and Compensation for Public Loss cannot be applied by analogy because there is no possibility of indirect losses of those who have been engaged in the Kim Seeds and Seeds Production Fisheries due to their hinterlands without permission or reporting required by the related Acts and subordinate statutes

[4] Whether a corporation’s rights and obligations are succeeded to a newly incorporated corporation under the statutory provisions (affirmative)

[5] The case reversing the judgment of the court below which dismissed the application for a takeover of a power generation company's lawsuit on the ground that the power generation company, the surviving company of which is a divided company, shall be subject to the deferred succession of lawsuit in a lawsuit in progress with respect to the Korea Electric Power Corporation, in case where the Korea Electric Power Corporation divides the power generation company from the surviving company and newly established company by

[2] A property special sacrifice caused by a legitimate exercise of public authority, such as the implementation of a public project, is recognized as compensation for losses from the point of view of overall fairness. Thus, whether a claimant who suffered losses due to the implementation of a public project has the right to receive compensation shall be determined at the time of implementation of the public project. As long as the approval of an implementation plan for the implementation of the public project and the subsequent announcement thereof have already been made, various permissions or reports for the implementation of the project thereafter have already become final and conclusive, and it cannot be deemed that the permissions or reporting authorities have suffered special losses due to the implementation of the public project thereafter.

[3] The case holding that the provisions on the compensation for losses under the Enforcement Rule of the Public Compensation for Loss and Compensation for Public Loss cannot be applied by analogy because there is no possibility of indirect losses of those who have been engaged in the Kim Seeds and Seeds Production Fisheries due to their hinterlands without permission or reporting required by the relevant laws and regulations

[4] In case where a corporation’s rights and duties are succeeded to a newly established corporation pursuant to the provisions of law, such corporation’s legal status shall also be succeeded to a newly established corporation in a pending lawsuit, unless there are special circumstances

[5] The case reversing the judgment of the court below which dismissed the application for a takeover of a power generation company's lawsuit on the ground that the power generation company, the surviving company, is a divided company, and the lawsuit is automatically succeeded to, in case where the power generation company was divided from the surviving company and newly established company by the method of corporate division under the Commercial Act

1. Fact-finding and judgment of the court below

A. Facts of recognition

From around July 1994, Plaintiff 1 established a fish plantation in the new Black-dong fishery harbor from 1985 and operated the business of producing and selling Kim seeds and seedlings to neighboring fishermen. Since around July 20, 1994, Plaintiff 1: (a) on the land outside 854, 1,224.16 square meters of the size of 1,224 square meters; (b) installed a new fish plantation on the land and filed a report on producing seeds and seedlings on the land (the effective period until November 10, 1997) from around 1987 to around 550, 198, Plaintiff 2 installed a fish plantation on the land and filed a report on the production and sale of seeds and seedlings on April 1, 1993 to the new seeds and seedlings (the effective period of Plaintiff 2 filed a report on the production and sale of seeds and seedlings on April 20, 199, and the entire report on the sale of seeds and seedlings to 198, 1998.

The defendant, a public project operator of the construction project of the Bocheon Power Power Plant, was a public project operator, and the defendant agreed to pay compensation to the defendant instead of extinguishing all his right to the Kim Jong-si fishing village village fraternity, etc. in the process of establishing and operating the Bocheon-si, Bocheon-si, 1983, and the construction of additional 3 through 6 equipment from around April 191 to April 1993. Since around April 1993, the neighboring fishermen were under construction and operation during the period from around April 1994. The neighboring fishermen demanded the defendant to compensate for the damage caused by the construction of these power plants, and the defendant demanded the defendant to pay compensation to the defendant on May 2, 1995, on the ground that both the fishery village fraternity, new black corporation (hereinafter referred to as the "Mapo-si fishing village fraternity, etc.") and the fishery village fraternity (hereinafter referred to as the "Mapo-si fishing village fraternity, etc."). The defendant also rejected the plaintiffs' request for compensation.

B. Determination

The plaintiffs' damages of this case constitute indirect losses that occurred outside the corporate territory of the public project called the additional construction of the development period of this case, and based on the Enforcement Rule of the Act on Special Cases concerning the Compensation for Public Loss (hereinafter "Special Cases Act") or the Land Expropriation Act, the plaintiffs cannot be deemed to have a right to claim compensation for losses immediately against the defendant, who is the executor

However, if it is easily predicted that such loss will occur due to the implementation of a public project and the scope of the loss can be specified in detail, the relevant provisions of the Enforcement Rule of the Act on Special Cases concerning the Compensation for Loss may apply mutatis mutandis.

However, Plaintiff 1’s fishery report was made on May 20, 1995, and around April 1994, 1994, at the time of the completion of the new electric power plant, it does not constitute cases where it can be easily predicted that there was no legitimate fishery report, and thus, losses caused by the construction of the additional electric power plant would occur due to the said additional construction. On the other hand, Plaintiff 2’s report was made on lawful land seeds and seedlings production fisheries around April 1994, which was at the time of the completion of the additional electric power plant, and thus, the occurrence of losses could be predicted, and the scope of the losses can be specified specifically.

Therefore, although the plaintiff 1's claim for compensation for losses or damages is without merit, the plaintiff 2's claim for compensation for losses falls under the case where the plaintiff 2/3 or more of the 2/3 or more of the 2/3 or more of the 23-5 of the 2007 of the Enforcement Rule of the Act on Special Cases is lost, so

2. The judgment of this Court

A. Article 23(3) of the Constitution provides that "the expropriation, use or restriction of property rights and compensation therefor shall be made by law and shall be paid just compensation," as a result of the implementation of a public project, even in cases where there is no express law as to indirect losses that may affect the land owner due to the acquisition or use of land, etc. for a public project," and Article 3(1) of the Special Act provides that "the act of infringing the property rights of the people must be based on the formal law, and the act of infringing the property rights of the people itself shall be based on the formal law, and there shall be the basis for infringement of the property rights necessary for a public project, and the compensation for losses arising therefrom shall be compensated by the project owner." Article 23-2 through 7 of the Enforcement Rule of the same Act provides that the compensation for indirect losses incurred by the owner of land, etc. due to the acquisition or use of land, etc. for a public project outside a public project execution zone shall be compensated by the project owner." Article 23-3(3) of the same Act provides that such losses shall be compensated by the implementation of the public project.

In addition, since compensation is recognized for a special sacrifice of property caused by a legitimate exercise of public authority, such as the implementation of a public project, from the point of view of overall fairness, the issue of whether a claimant who suffered loss due to the implementation of a public project has the right to receive compensation shall be determined as at the time of the implementation of the relevant public project. As long as the approval of an implementation plan for the implementation of the public project and the subsequent public notice thereof have already been made, it cannot be deemed that the permission or reporting for the implementation of the public project has already been made under the status that the restriction on the implementation of the said public project has already been determined and has already been made, and that the person having the right to report has suffered special losses (see, e.g., Supreme Court Decisions 95Da15032, 15049, Apr. 14, 1998; 98Da11529, Nov. 23, 199; 200Da16893, Sept. 25, 2001).

B. According to the facts acknowledged by the court below, although the time when the project implementation plan was approved and announced in accordance with the relevant Acts and subordinate statutes with respect to the period of Nos. 3 through 6 of the Defendant's Bovine power plant power plant operator is unclear, it is obvious that such procedure was conducted before the date of 1991 recognized by the court below as the construction work of the power plant operator at least. Thus, whether the plaintiffs suffered a special sacrifice for which they can claim compensation against the Defendant should be determined based on

Article 12(1) of the former Fisheries Act (amended by Act No. 4252, Aug. 1, 1990); Article 14-6 subparag. 12 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1049, Aug. 26, 1981) and Article 3 [Attachment Table 3] of the Rules on Permission for Fishery (amended by Presidential Decree No. 966, Mar. 9, 1987); Article 9 of the former Rules on Permission for Fishery (amended by Presidential Decree No. 966, Mar. 9, 1987; Ordinance No. 1965, Apr. 1, 1997; Ordinance No. 1965, Apr. 3, 1995; Ordinance No. 1957, Apr. 19, 200) provides that the Plaintiffs were engaged in inland culture and seedling production business with a certain facility.

Therefore, as long as permission or a report is not made pursuant to the relevant Acts and subordinate statutes, the defendant is unable to easily understand the existence, size, production capacity, etc. of the plaintiffs' business at the time of the implementation of the public project, and it is difficult to grasp the relationship between the Kim cam and its hinterlands, and the scope of the loss cannot be specified specifically (see Supreme Court Decisions 95Da29161, Jan. 20, 1998; 98Da57419, Dec. 24, 1999; 98Da57419, 57426, Nov. 24, 199). If the plaintiffs reported and operated their business after the implementation of the public project, it cannot be deemed that the restriction on the implementation of the public project becomes final and conclusive, and it does not constitute a special sacrifice subject to compensation (see, e.g., Supreme Court Decisions 97Da9345, May 16, 197; 98Da11529, Nov. 23, 1999).

Ultimately, according to the facts acknowledged by the court below, all claims for damages arising from the plaintiffs' failure to claim or compensate for losses of this case shall be dismissed. In the case of plaintiffs 1, the reasons for the judgment of the court below are different, but they are just in conclusion, but in the case of plaintiffs 2, the judgment of the court below is erroneous in the misunderstanding of legal principles as to the base point of time of and requirements for the compensation for indirect losses as seen above, which affected the conclusion of the judgment.

Therefore, Plaintiff 1’s grounds of appeal cannot be accepted, and the Defendant’s grounds of appeal on this point are with merit.

C. Furthermore, on April 30, 2001, the court below dismissed ex officio, on the ground that, with respect to a request for continuation of a lawsuit filed by the Korea Medium & Medium Development Co., Ltd. (hereinafter referred to as the "Korea Medium & Medium Development") on the grounds that it was divided from the defendant and succeeded to its status in the lawsuit, the cause of corporate division occurs and the scope of rights and obligations succeeded under the law is determined at the same time, and the defendant's responsibility to the plaintiffs cannot be deemed to have been naturally transferred to the Korea Medium & Medium Development, the applicant

However, in a case where a corporation’s rights and obligations are succeeded to a newly established corporation under the provisions of law, the legal status of the corporation is also succeeded to the newly established corporation in a pending lawsuit (see Supreme Court Decisions 63Da8, Apr. 11, 1963; 67Da1262, Apr. 28, 1970; 83Meu1409, Jun. 12, 1984, etc.).

According to the records, the defendant divided the company into six separate companies while continuing to exist as it is by the defendant under Article 530-9 (2) and Article 530-5 (1) 8 of the Commercial Act. As to the division plan of the company established under Article 530-9 (2) and Article 530-5 (1) 8 of the Commercial Act, the right and obligation arising from a lawsuit related to the relevant power plant between the surviving company and the newly incorporated company shall be transferred from the defendant to the development company. The contents of each lawsuit are specified, and in the case of the lawsuit in this case, the defendant transferred the right and obligation from the defendant to the development company in Korea. As such, since the division plan of the company in this case and the surviving company established under this division under Article 530-9 (2) of the Commercial Act shall be determined as to the division plan between the defendant and the newly incorporated company in this case, the rights and obligations arising from the division plan in this case shall be transferred to the new company in Korea under the provisions of the Commercial Act.

Nevertheless, the court below rejected the application for taking over a lawsuit in the Republic of Korea, and declared a judgment by proceeding the lawsuit in this case as is. In the event of a corporate division, the court below erred by misapprehending the legal principles on the party taking over a lawsuit in the previous company, and in this regard, the judgment of the court below cannot be exempted from reversal.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)