[토지수용재결처분취소등][공1995.10.15.(1002),3414]
A. Whether an objection against an adjudication of expropriation may be raised only in calculating the amount of compensation and an objection against the rejection of the request for expropriation of remaining land may be raised in administrative litigation even if no explicit objection is raised
(b) In case of receiving additional compensation by an objection ruling, whether there is a benefit to dispute the objection ruling;
A. The compensation following the expropriation of land is not based on the land subject to expropriation but by the person subject to expropriation, and the remaining land is the right granted to the land owner as a part of the compensation liability, and the compensation amount of the land can be exercised by the method of dispute over the scope of the land subject to expropriation and the land expropriation. In addition, Article 75 of the Land Expropriation Act provides that the Central Land Expropriation Committee shall deliberate on the illegality or illegality of the adjudication on expropriation and does not limit the deliberation only on the grounds for objection stated in the written objection. Thus, barring any special circumstance, an objection shall be effective in the entire adjudication on expropriation, and in administrative litigation on the land expropriation, the defects of the adjudication on expropriation which are not considered as the grounds for objection may be asserted not only in the original adjudication on expropriation but also in the administrative litigation on the land expropriation. Thus, in raising an objection against the adjudication on expropriation, even if it is asserted that the calculation of compensation amount for the remaining part of the adjudication on expropriation is unlawful, and it is not clearly stated that the remaining part of the adjudication on expropriation is an objection against the dismissal of the request for expropriation.
B. Even if a landowner expressed his/her intent to keep an objection at the time of receiving compensation for losses as determined in the adjudication of expropriation, it shall be deemed that he/she received the objection in return for the result of the adjudication, unless the landowner expressed his/her intention to keep the objection while receiving the increased compensation for losses in the adjudication of acceptance. The fact that the administrative litigation disputing the objection is pending at the time of receiving the additional compensation cannot be deemed as having expressed his/her intention to keep the additional compensation for the receipt of the additional compensation.
(a)Article 48(1) of the Land Expropriation Act, Article 29(1)(b) of the Enforcement Decree of the Land Expropriation Act;
A. Supreme Court Decision 88Nu852 delivered on June 13, 1989 (Gong1989, 1094) 90Nu288 delivered on February 12, 1991 (Gong1991, 989) 92Nu5331 delivered on September 8, 1992 (Gong1992, 2898) 2. Supreme Court Decision 90Nu7203 delivered on June 11, 1991 (Gong1991, 193) 90Nu7081 delivered on August 27, 1991 (Gong191, 2446) 91Nu1342 delivered on October 13, 1992 (Gong192, 3154) 192, 193Nu193839 delivered on September 13, 1994)
Plaintiff’s Attorney Seo-sik, Counsel for the plaintiff-appellant
Central Land Tribunal and one other Defendants (Attorney Shin Man-han, Counsel for the defendant-appellant)
Seoul High Court Decision 92Gu18155 delivered on August 18, 1993
The part of the judgment of the court below against the plaintiff on remaining accommodation shall be reversed, and that part of the case shall be remanded to the Seoul High Court.
The plaintiff's remaining appeals are dismissed.
The costs of appeal dismissed shall be assessed against the plaintiff.
The grounds of appeal by the Plaintiff’s attorney are examined.
1. On the first ground for appeal
A. According to the reasoning of the judgment below, the court below accepted the land for which the Central Land Expropriation Corporation was applied for adjudication on December 2, 1991, which is a business operator of the defendant Korea Land Development Corporation, and determined the amount of compensation at the same time, and rendered a ruling of acceptance to dismiss the plaintiff's request for expropriation of remaining land. Accordingly, the plaintiff asserted only as a ground for objection that the calculation of compensation for the part of the deadline for the application for adjudication of the business operator was illegal while the plaintiff raised an objection against the above ruling of acceptance, and did not raise any objection against the part dismissing the request for expropriation of the remaining land. Accordingly, the court below determined that the part concerning the request for expropriation of the remaining land among the lawsuit of this case was unlawful.
B. However, the compensation following the original expropriation of land is conducted not by land to be expropriated but by the victim (see Article 45(2) of the Land Expropriation Act, and Article 92Nu5331, Sept. 8, 1992). The remaining land expropriation right is a right granted to the landowner as a part of the compensation liability. It can be exercised by means of dispute over the scope of the land to the land to be expropriated and the amount of compensation (see, e.g., Supreme Court Decision 88Nu852, Jun. 13, 1989). Further, Article 75 of the Land Expropriation Act only provides that the Central Land Expropriation Committee shall deliberate on the illegality or illegality of the adjudication of expropriation, and it does not limit the deliberation only on the grounds of objection as stated in the written objection. Thus, in administrative litigation concerning the expropriation of land, the remaining part of the compensation claim shall not be deemed to affect the entire adjudication of expropriation, and it shall be deemed to be unlawful for the plaintiff to raise an objection against the remaining part of the adjudication of expropriation.
C. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the methods of exercising the right to claim the remaining land expropriation, the scope of the objection against the adjudication of expropriation, and the scope of illegal grounds that the plaintiff can claim in the administrative litigation as to the land expropriation. Therefore, the appeal pointing this out has merit.
2. On the second ground for appeal
Even if a landowner expressed his intention of reservation at the time of receiving compensation for losses as prescribed in the adjudication of expropriation, unless he expressed his intention of reservation while receiving the increased amount of compensation for losses in the adjudication of acceptance, it shall be deemed to have been received in return for the result of the adjudication. The fact that the administrative litigation disputing the said adjudication is pending at the time of receiving the above additional compensation cannot be deemed as having expressed his intention of reservation as to the receipt of additional compensation (see, e.g., Supreme Court Decision 92Nu18573, Sept. 14, 1993; 92Nu18573, Sept. 14, 1993). Thus, the judgment of the court below to the same purport is correct, and there is no error of law by misunderstanding the legal principles as to the issue of whether the additional compensation is a total amount of compensation, such as the theory of lawsuit, thereby impairing the value of evidence or failing to exhaust all deliberation.
3. Therefore, the part of the judgment of the court below against the plaintiff on the remaining accommodation is reversed, and that part of the case is remanded to the court below. The plaintiff's remaining appeal is dismissed. The costs of appeal on the dismissed appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating
Justices Cho Chang-tae (Presiding Justice)