[토지수용재결처분취소][집38(3)특,310;공1991.1.1.(887),101]
(a) The appropriateness of appraisal and assessment based on the answer of the production green area as the reference land in evaluating the amount of compensation for the land to be expropriated as the site at the time the expropriation ruling was made by the person who was the forest within the production green area at the time of the scheduled announcement of housing site development (negative);
B. Whether the provision of Article 4(2) of the Special Act on the Compensation for Public Loss, which stipulates that the amount of compensation shall be calculated on the basis of the price as of the date of public announcement or the date of public announcement, applies mutatis mutandis
(c) In calculating the amount of compensation for any land to be expropriated within the area where the standard land price is publicly announced, if there is no example of transaction of similar neighboring land, taking into account the assessment time of neighboring land, etc. (affirmative)
A. The appraisal base date of the compensation for losses for the land to be expropriated is the expropriation ruling date, and in assessing the compensation price, it is necessary to select the reference land most similar to the situation of utilization at the time of the adjudication on expropriation and the surrounding environment at the time of the adjudication on expropriation of the land and evaluate its standard land price. In assessing the amount of compensation for the land to be expropriated which is the site at the time of the adjudication on expropriation of this case, it is unlawful to consider the answer of the production green area as the reference land on the ground that the land was the forest within the production green area at the time of the announcement
B. In principle, the compensation for public loss is applied to the acquisition of public land through consultation. However, in the case of public collection such as expropriation, the provision of Article 4 of the Act on Special Cases Concerning the Acquisition of Land for Public Use is applied mutatis mutandis only when there is no provision in the Land Expropriation Act under Article 57-2 of the Land Expropriation Act. According to Article 46 of the Land Expropriation Act, the calculation of compensation for loss must be calculated at the time of the adjudication of expropriation. Thus, the provision of Article 4(2) of the Act on Special Cases Concerning Special Cases Concerning the Acquisition of Land for Public Use
C. In calculating the amount of compensation for the land to be expropriated within the publicly announced area, if there is no transaction example of similar similar land, it is difficult to take this into account, and there is no way to take this into account, and thus, it cannot be reasonably considered.
A.B. Article 46(b) of the former Land Expropriation Act (amended by Act No. 4120 of Apr. 1, 1989). Article 57-2(a) of the Land Expropriation Act. Article 29(5)(c) of the former Act on the Utilization and Management of the National Territory (amended by Act No. 4120 of Apr. 1, 1989) of the Enforcement Decree of the same Act. Article 49(1)3(b) of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 12781 of Aug. 18, 1989
A. Supreme Court Decision 88Nu8647 delivered on December 27, 1988 (Gong1998, 248) 89Nu2875 delivered on March 23, 1990 (Gong190, 974)
Kim Il-ro et al., Counsel for the defendant-appellant-appellee
Attorney Park Jong-yang et al., Counsel for the Central Land Tribunal
Seoul High Court Decision 89Gu5548 delivered on February 7, 1990
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
Defendant 1’s ground of appeal
1. According to Article 46 of the Land Expropriation Act (amended by Act No. 4120 of Apr. 1, 1989), Article 29 (5) of the Act on the Utilization and Management of the National Territory (amended by Act No. 4120 of Apr. 1, 198), the compensation value of the land to be expropriated is a ruling of expropriation. Thus, the compensation value should be assessed based on the selected standard land price (see, e.g., Supreme Court Decision 88Nu8647, Dec. 27, 1988; Supreme Court Decision 89Nu2875, Mar. 23, 1990; Supreme Court Decision 89Nu2875, Jul. 10, 1986; Supreme Court Decision 305, Feb. 20, 1986; Supreme Court Decision 2006Da163186, Jun. 16, 1986).
2. Article 57-2 of the Land Expropriation Act provides that the provisions of Articles 4 and 8 of the Special Act on the Compensation for Public Loss shall apply mutatis mutandis to the methods and standards for calculating the amount of compensation for losses, except as otherwise provided in this Act. Article 4(2) of the Special Act on the Compensation for Public Loss and Compensation for Losses where the price of the land to be acquired is changed due to the public announcement or announcement of the plan or implementation of the public project, the special Act provides that the amount of compensation shall be calculated on the basis of the price as of the date of the public announcement or announcement of the public project. However, Article 4 of the Special Act on the Compensation for Public Loss and Compensation for Losses shall apply mutatis mutandis to the case of the acquisition of the public land through consultation, except as otherwise provided in Article 57-2 of the Land Expropriation Act. Article 46 of the Land Expropriation Act provides that the calculation of the amount of compensation for losses shall be calculated on the basis of the date
No theory is accepted since it is a basis for criticism of the judgment of the court below in other opinions above.
In addition, according to Article 29(5) of the Act on the Utilization and Management of the National Territory, and Article 49(1)3 of the Enforcement Decree of the Act on the Utilization and Management of the National Territory (amended by Presidential Decree No. 12781, Aug. 18, 1989) of the Act on the Utilization and Management of the National Territory and Article 49(1)3 of the Enforcement Decree of the Act on the Utilization and Management of the National Territory provides that the standard land price should be calculated in consideration of the normal transaction price of neighboring similar land transacted between the time when the standard land price is publicly announced and the time when the public announcement is made. Thus, the appraisal of the land in question is inappropriate on the ground that the standard land price does not affect the normal transaction price of neighboring land. However, the judgment of the court below that the appraisal method in question did not affect the above determination of the standard land price cannot be seen as an erroneous determination of the standard land price in this case.
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 Yoon Young-young (Presiding Justice)