[2] The legal nature of the agreement for public acquisition under the former Special Act on Compensation for Losses or Compensation for Losses

[3] Whether a landowner can exercise the right to purchase the remaining land as a right to be formed by the former Public Service Compensation for Loss (negative)

[2] The former Special Act on the Compensation for Loss of Public Use (amended by Act No. 6656 of Feb. 4, 2002) prescribes the criteria and methods for the project implementer to acquire land, etc. through consultation from the owner of land, etc., and thus, the agreement on acquisition through consultation or compensation by consultation has the substance of private trade or private contract made by the public institution as a private economic entity.

[3] Although Article 25 of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002), the confirmation of the completion of the consultation by the competent Land Expropriation Committee is different from the acquisition through consultation under the former Special Act on the Compensation for Public Loss (amended by Act No. 6656 of Feb. 4, 2002) in that it is deemed that the consultation is made by adjudication. Article 4 (6) of the former Special Act on the Compensation for Losses of Land, etc. (amended by Act No. 6656 of Feb. 4, 2002) provides that "the project operator may acquire the remaining land at the request of the remaining owner," and Article 26 of the Enforcement Rule of the former Land Expropriation Act provides the method of appraisal of the remaining land. It is questionable that there is no special nature of the above Special Act on the Acquisition of Land, Public Land Expropriation Act, procedure for the purchase of land, and procedure for its compensation to the landowner, the basis and purport of the above Special Act on the Purchase of the remaining Land, and its form of the right to purchase agreement.

1. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s act of including 8,766 square meters in aggregate of 8,76 square meters of eight parcels, including 813 square meters in [Attachment List No. 1] owned by the Plaintiff (hereinafter “the land before subdivision of this case”) was an act of entering into the land before subdivision of the land before subdivision of the land, which was located within 8,015 square meters of land (hereinafter “the land incorporated into this case”) after division into the 3th August 24, 199, the Defendant’s claim for purchase of the remaining land in accordance with the former Land Expropriation Act was unlawful for the reason that it is difficult to view that the Plaintiff’s act of purchasing the remaining land under the former Land Expropriation Act, which was incorporated into the land within the 1,035th square meters of land adjacent to the 1,035th square meters of land adjacent to the 76th square meters of land under the former Land Expropriation Act, and thus, it is reasonable for the Defendant to seek the payment of the remaining land within the jurisdiction of the Seoul Land Expropriation Act.

2. The court below's decision that the defendant's acquisition of consultation on the incorporated land of this case is governed by the Public Special Act, and that the defendant is obligated to pay compensation upon the plaintiff's request for purchase of the remaining land shall be deemed to be the right to form the land owner under the Public Special Act and the right to request purchase of the remaining land is recognized. However, it is difficult to accept for the following reasons.

Article 48 (1) of the former Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002; hereinafter referred to as the "Land Expropriation Act") recognizes a landowner as a right to form a land where it is substantially difficult to use part of a group of lands remaining due to forced acquisition of land by a project operator for public works for the original purpose. Accordingly, in order to request a landowner to expropriate the remaining land, only if the consultation on the purchase of the remaining land is requested by the project operator and the consultation on the purchase of the remaining land is not reached, the landowner may request the competent Land Expropriation Committee to expropriate the whole group of lands including the remaining land before the adjudication by the Land Expropriation Committee is made. If the adjudication on expropriation and its objection are dissatisfied with the adjudication on expropriation, the ruling authority and the project operator shall file an action for cancellation of the said adjudication and increase in compensation with the joint defendant, and it is not possible to claim compensation for the remaining land by civil litigation against the project operator (see Supreme Court Decision 2001Da139310, Jun. 1, 2001).

In addition, the former Public Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002) prescribes the criteria and methods for the project operator’s acquisition of land, etc. through consultation and compensation therefor from the owner of land, etc., and the agreement for acquisition through consultation or compensation pursuant thereto has the substance of private trade or private contract conducted by the public institution as a private economic entity (see, e.g., Supreme Court Decisions 98Da2242, 2259, May 22, 1998; 9Da26924, Sept. 8, 200). Although the Land Expropriation Act provides for the acquisition through consultation of the project operator, the confirmation of the completion of such consultation is considered to be a judgment, and the so-called Special Land Expropriation Act provides for the remaining land owner’s right to request purchase through consultation and the so-called Special Land Expropriation Act, and it is doubtful that the remaining land owner’s right to request purchase through consultation can only be deemed to be established under the Special Land Expropriation Act.

Nevertheless, under the premise that the right to purchase the remaining land is recognized as a right to form a land owner under the special public law, the court below's order to pay compensation is erroneous in the misapprehension of legal principles as to the interpretation of the special public law, and thus, affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)