[손해배상(기)][공1997.12.15.(48),3813]
[1] In a case where a public project operator refuses a claim for adjudication by a landowner, etc., whether the project operator can seek implementation of the procedure by means of civil procedure (negative)
[2] Whether a person who suffers loss due to the implementation of a reclamation project for public waters may apply for a ruling directly to the competent Land Tribunal (affirmative)
[1] The reasons why the Land Expropriation Act grants a claim for adjudication to a landowner, etc. may file an application for adjudication at any time within one year from the date of notification of the project approval (the electric source development business is within the period of execution of the business), while the landowner has no right to file an application for adjudication, and it is interpreted that there is no right to file an application for adjudication to protect the interests of the landowner, etc. who is to make prompt confirmation of legal relations surrounding the expropriation and to ensure fairness between the parties to the expropriation, and indirectly enforce the additional plan system to secure the invalidation of the above claim (Article 25-3(3) of the Land Expropriation Act). If a project operator fails to file an application for adjudication within the above period of application, the project approval shall naturally lose its effect from the date following the expiration date of the above period of application and compensate the landowner, etc. for losses incurred by the project operator, etc. (Articles 17 and 55(1) of the Land Expropriation Act).
[2] In case of compensation for losses caused by the implementation of a reclamation project of public waters, since both a project operator or a person who suffered losses may file an application for adjudication directly with the competent Land Tribunal in accordance with the procedures stipulated in the Public Waters Reclamation Act and the Enforcement Decree thereof, there is no interest in filing a lawsuit to seek an application for adjudication against a project operator, and there is no legal basis for filing an application for adjudication against a project operator, and there is no qualification for seeking an application
[1] Articles 25 and 25-3 of the Land Expropriation Act / [2] Article 16 of the Public Waters Reclamation Act, Article 26 of the Enforcement Decree of the Public Waters Reclamation Act
[2] Supreme Court Decision 96Da3838 delivered on October 10, 1997 (Gong1997Ha, 3385)
Plaintiff 1 and two others (Attorney Kang Jae-soo, Counsel for the plaintiff-appellant)
Korea Electric Power Corporation (Attorney Choi Young-soo, Counsel for defendant-appellant)
Busan High Court Decision 96Na6509 delivered on February 14, 1997
All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. On the first ground for appeal
The reason why the Land Expropriation Act grants a claim for adjudication to a landowner, etc. in the event that no agreement is reached, a project operator may file an application for adjudication at any time within one year from the date of the public announcement of the project approval (in the case of an electric power resource development business, within the implementation period of the business), while no landowner has the right to file an application for adjudication, and it is interpreted that the interests of landowners, etc., such as the prompt confirmation of legal relations surrounding the expropriation, are to be ensured fair between the landowners, and the additional dues are indirectly enforced in order to secure the effectiveness of the above claim (Article 25-3(3) of the Land Expropriation Act). If a project operator fails to file an application for adjudication within the above application period, the project approval becomes null and void as a matter of course from the day following the expiration date of the above application period and compensate the landowner, etc. for losses incurred by the project operator, etc. (Articles 17 and 55(1) of the same Act). For this reason, it is reasonable to deem that the project operator refuses a claim for adjudication.
The judgment of the court below to the same purport is just, and there is no error of law as claimed in the grounds of appeal.
The court below's decision that the execution period of the electric power resource development business of this case was authorized by June 1993, and recognized the completion of all of the projects on June 30, 1994, and determined that the lawsuit of this case by the plaintiffs seeking the implementation of the procedure for application for adjudication under the Land Expropriation Act is unlawful after the expiration of the execution period, is just in light of the records and relevant Acts and subordinate statutes. There is no violation of the rules of evidence and any error of law due to incomplete deliberation, as alleged in the grounds of appeal
2. On the second ground for appeal
According to records and relevant Acts and subordinate statutes, in case of compensation for losses caused by the implementation of a reclamation project of public waters, the court below is just in holding that the project implementer or the person who suffered losses can apply for adjudication directly to the competent Land Tribunal in accordance with the procedures prescribed by the Public Waters Reclamation Act and the Enforcement Decree thereof, so there is no interest in filing the lawsuit of this case, and that the person who suffered losses has no legal grounds for filing a petition for adjudication against the project implementer, and therefore there is no error of law by misunderstanding legal principles as asserted in the
3. Therefore, all appeals are 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 on the bench.
Justices Kim Jong-sik (Presiding Justice)