[토지수용이의재결처분취소][집53특,281;공2005.4.1.(223),503]
[1] The method of assessing the amount of compensation for expropriation of land subject to restrictions under the relevant public law, in a case where the public law limits the amount of land included in a public project area not directly aiming at the implementation of the relevant public project after the execution of the public project
[2] The case holding that since it is apparent that the expanded designation of cultural property protection zone is not directly conducted for the purpose of implementing the housing site development project which is a public project, the amount of compensation for expropriation of land should be assessed as limited under such public law
[1] In calculating the amount of compensation for expropriation of land subject to restrictions under public law, if the restriction under public law directly aims at the implementation of the public project in question, it shall be evaluated as without such restriction. However, if the restriction under public law is not directly intended for the implementation of the public project in question, it shall be evaluated as it is in the state of being subject to such restriction, and it shall not be deemed as a different case after the implementation of the public project in question.
[2] The case holding that since it is apparent that the expanded designation of cultural property protection zone is not directly conducted for the purpose of implementing the housing site development project which is a public project, the amount of compensation for expropriation of land should be assessed as limited under such public law
[1] Articles 46(2) and 57(2) of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, Act No. 6656, Feb. 4, 2002); Article 6(4) of the former Enforcement Rule of the Special Act on the Compensation for Public Works and the Compensation for Losses (repealed by Ordinance No. 344, Dec. 31, 2002) / [2] Article 46(2) of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Compensation for Land, etc. for Public Works and the Compensation for Land, etc. for Residents, Act No. 6656, Feb. 4, 2002); Article 18-2 of the former Enforcement Rule of the Cultural Heritage Protection Act (Amended by
[1] Supreme Court Decision 82Nu549 delivered on May 29, 1984 (Gong1984, 1197), Supreme Court Decision 88Nu11797 delivered on July 11, 1989 (Gong1989, 1259), Supreme Court Decision 91Nu4324 delivered on March 13, 1992 (Gong192, 1317), Supreme Court Decision 93Nu12527 delivered on October 12, 1993 (Gong193Ha, 3102), Supreme Court Decision 98Du4504 delivered on April 21, 200 (Gong200, 1313)
Plaintiff
Central Land Tribunal and one other (Law Firm Docheon, Attorneys Yu-chul et al., Counsel for the plaintiff-appellant)
Gwangju High Court Decision 2003Nu994 delivered on October 30, 2003
The judgment below is reversed, and the case is remanded to the Gwangju High Court.
1. Summary of the judgment below
According to the reasoning of the judgment of the court below and the court of first instance cited by the court below, it is reasonable to assess the compensation amount for expropriation of land subject to restrictions in public law prior to the implementation of the housing site development project. However, it is reasonable to assess the compensation amount for expropriation of the land in public law by public notice under the Urban Planning Act, etc., regardless of the relevant public project. However, on the premise that if a general planning restriction has already been made after the implementation of the relevant public project, it shall be evaluated as being without such restriction. However, on the premise that the housing site development plan in this case was approved and publicly announced and the housing site development project was being implemented on September 16, 200, the designation of the land in this case owned by the plaintiff was extended to "No. 375 "No. 375 Sim New Changdong-dong" by the Cultural Heritage Administration, so the designation of the above cultural heritage protection area is merely limited to the public law after the implementation of the housing site development project, and therefore, it shall be evaluated as not subject to such restrictions in public law.
2. Judgment of the Supreme Court
In calculating the amount of compensation for expropriation of land subject to restrictions under public law, if the restriction under public law directly aims at the implementation of the relevant public project, it shall be evaluated as without such restriction. However, if the restriction under public law is not directly intended for the implementation of the relevant public project, it shall be evaluated as it is in the state where it is subject to such restriction, and it shall not be deemed that such restriction is made after the implementation of the relevant public project.
According to the records, it is apparent that the expansion designation of cultural property protection zone of this case is not directly intended for the implementation of the housing site development project of this case, which is the relevant public project, so the land of this case should be evaluated as being subject to such restrictions in public law.
Nevertheless, the court below erred in the misapprehension of legal principles as to compensation for land subject to restrictions in public law, which affected the judgment, and it is clear that the judgment of the court below affected the conclusion of the judgment, by misapprehending the legal principles as to compensation for land subject to restrictions in public law.
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 Shin Shin-chul (Presiding Justice)