[손해배상(기)][공1991.8.1.(901),1904]
The time of occurrence of liability for compensation under Article 41 (1) of the Land Readjustment Project Act to the owner of buildings, etc. by the implementer of a land readjustment project due to the relocation or removal of buildings, etc. under Article 40 (1) of the Land Readjustment Projects
According to the provisions of Articles 40(1), 41(1), and 56(1) of the Land Readjustment Projects Act, the duty of compensation for losses under Article 41(1) of the same Act due to the relocation or removal of buildings, obstacles, etc. under Article 40(1) of the same Act by a land readjustment project implementer is not generated only by the fact that the previous land constructed, such as buildings, was designated as a land substitution, but only by the case where the project implementer has made a disposition against the building owner, such as the relocation of buildings, etc.
Articles 40, 41, and 56 of the Land Readjustment Projects Act
[Judgment of the court below]
Masan City, Attorneys Seo-sung et al., Counsel for the defendant-appellant
Busan High Court Decision 90Na783 delivered on November 15, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
According to the reasoning of the judgment below, the court below acknowledged that the defendant, around 1970, was not a dispute between the parties concerned as to the transfer of the warehouse and factory building owned by the plaintiff to the non-party 1 (the non-party co-defendant) in the name of payment for the construction cost, since the defendant did not transfer the land secured by the land secured by the plaintiff to another person without transferring the land secured by the land secured by the plaintiff to the land owner, the plaintiff could not move its place of business to another place of business due to removal of the building. Thus, the defendant, as the project implementer, did not have a duty to compensate the plaintiff for damages equivalent to the removal of the market price of the building due to the above building's removal by the land secured by the land substitution and rearrangement project (hereinafter referred to as the "Act") and Article 40 and Article 41 of the Land substitution and Rearrangement Projects Act, and the land substitution and rearrangement project is not subject to the plaintiff's compensation for damages.
According to Article 40 (1) of the above Act, where a project implementer designates a land as a planned land substitution pursuant to Article 56 (1), he/she may, if necessary, relocate or remove buildings, obstacles, etc. located within the execution zone, and according to Article 41 (1) of the Act, where a person suffers losses due to the disposition of Article 40 (1) of the Act, the project implementer shall compensate for such losses. According to the above provisions, the previous land on which buildings, etc. are constructed is designated as a land as a planned land substitution, not the project implementer is obligated to compensate for losses, but the project implementer is obligated to compensate for losses only when he/she moves or removes buildings, etc. to the owner of the buildings
However, according to the records, there is no evidence suggesting that the defendant, as the implementer, found that the building had been transferred or removed by Article 40(1) of the Act to the plaintiff, who is the owner of the building. Thus, it should be viewed that there is no room for the plaintiff's right to claim compensation for loss under the premise that the defendant had taken the above relocation or removal against the plaintiff.
The judgment of the court below that the above provision on compensation for losses cannot be applied to this case is insufficient, but its conclusion is justifiable. Ultimately, the argument is groundless.
Therefore, the appeal is 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.
Justices Kim Yong-sung (Presiding Justice)