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red_flag_2(영문) 수원지방법원 2012. 10. 24. 선고 2012구합875 판결

[수용보상금증액][미간행]

Plaintiff

Plaintiff 1 and two others (Law Firm Youngjin et al., Counsel for the plaintiff-appellant)

Defendant

Korea Land and Housing Corporation (Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

Conclusion of Pleadings

October 10, 2012

Text

1. The defendant,

A. The amount of KRW 55,299,400 and 20% per annum from August 18, 2011 to October 24, 2012; and

B. 5% per annum from August 18, 201 to October 24, 2012 and 20% per annum from the next day to the day of full payment to Plaintiff 2;

C. From September 13, 2011 to October 24, 2012, the amount calculated by 5% per annum from September 13, 2011 to October 24, 201, and 20% per annum from the next day to the day of full payment of the Plaintiff racing’s 71,284,700 won among the jum jum jum jum jum jum pa

sub-payment.

2. The remainder of the plaintiff 1, racing 1, 1, 1, 1, 1, 1, 1, 1, 1, 2

3. Of the costs of lawsuit, the part arising between the plaintiffs 1, 1/3 of the races of the races of the races of the races of the races of the races of the races of the races of the races and the defendant shall be borne by the above plaintiffs, and the remainder

Purport of claim

The defendant shall pay to plaintiff 1 64,69,40 won with 5% interest per annum from August 18, 2011 to the date this judgment is rendered; 20% interest per annum from the next day to the date of complete payment; and 122,075,600 won per annum from September 13, 201 to the date of full payment; and 5% interest per annum from the next day to the date of full payment to the date of full payment; and 20% interest per annum from the next day to the date of full payment.

Reasons

1. Details of ruling;

(a) Approval and public notification of the project;

(1) Musan-Seoul Road Project Site Reservation Project: <1>>> <1> <1> <1> (1) <1> <1> <1> (2) <1> (2) <1>

(2) Approval and public notice of a project plan for the reservation of land for public development pursuant to Articles 14 and 15 of the Public Land Reservation Act, No. 2009-520 announced by the Ministry of Land, Transport and Maritime Affairs on August 3, 2009

(c) Project operator: Defendant;

B. The Central Land Tribunal’s ruling on expropriation on June 24, 201 (hereinafter “adjudication on expropriation”)

(1) Land to be expropriated: The following areas owned by Plaintiffs 1 and 2 are as stated in the column of land subject to expropriation of attached Table 1>

(2) Compensation for losses: Each entry in the column for acceptance ruling amount of the attached Table 1>

(3) Date of commencement of expropriation: August 17, 201

(4) Appraisal Corporation: Nonparty 3 Appraisal Corporation and Nonparty 4 Appraisal Corporation

C. The Central Land Tribunal’s ruling on expropriation on August 12, 201 (hereinafter “adjudication on expropriation 2”)

(1) Land to be admitted: The land owned by the Plaintiff is as stated in the column of land to be admitted in the attached Table 2> under the ownership of the Plaintiff’s clan (hereinafter collectively referred to as “each of the instant land”).

(2) Compensation for losses: Each entry in the column for expropriation ruling amount of the attached Table 2>

(3) Date of commencement of expropriation: September 12, 201

(4) Appraisal Corporation: Nonparty 5 Appraisal Corporation and Nonparty 6 Appraisal Corporation

D. The Central Land Tribunal’s ruling of objection (hereinafter “instant ruling”) dated December 16, 201 by December 16, 201

(1) Compensation for losses: Each entry in the column of the ruling amount of the Table 1>

(2) Appraisal Corporation: Nonparty 7 Appraisal Corporation and Nonparty 5 Appraisal Corporation

E. The Central Land Tribunal rendered an objection on January 13, 2012 (hereinafter referred to as “instant second adjudication”)

(1) Compensation for losses: The following specifications are as follows: < Amended by Presidential Decree No. 2070, Mar. 2, 201

(2) An appraisal corporation: Nonparty 8’s appraisal corporation and the Korea Appraisal Board (hereinafter “First appraisal corporation of this case”) and the Second appraisal appraisal corporation of this case are collectively referred to as “adjudgment appraiser,” and the results of the appraisal are collectively referred to as “adjudgment.”

Plaintiff 15,91,250-4 land (number 11 omitted), 221, 101, 604, 750-30, 307, 303, 300-3, 115, 16, 91, 250-4, 40-3, 115, 191, 250-4, 50-3, 300-3, 115, 30-3, 30-3, 115, 115, 38, 40-4, 111, 40-38, 40-38, 111, 520-4, 524, 520-7, 307, 407, 407, 604, 604, 607, 607, 253636, 207, 2005-3636,4

71,33,800 71,023,023,40 71,023,800 741,956,100 17,889,50 9,00 Masan-ri (13 omitted), No. 43318,081,80 317,042,600 317,042,600 11181,540 7,58586,57586,46,5758,46,5758,57,46,57,50 205,00 9,00 9,00 9,00 317,042,60 10 14181,540,6010 274,2011 (14 omitted) of the land number of the clan, 20556,26586,7565,267665,76565,265,7,767565,267,267,67,267,657,267

[Ground of Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1 through 3, Gap evidence 3, Gap evidence 4-1 to 3, Eul evidence 1-1 to 8, and the purport of the whole pleadings

2. Determination as to the plaintiffs' claims

A. The plaintiffs' assertion

(1) The plaintiffs' common assertion

In order to apply the gap rate between the correction of other factors and the gap rate of individual factors, the adjudication appraiser assessed the compensation for losses in an amount significantly below the market price of each of the lands of this case.

(2) Plaintiff 1’s assertion

4 Since the land category was changed to a road because it was incorporated into the head-conduit road business, but has not been compensated, it is necessary to consider and evaluate the land as "the answer", which is the situation of use at the time of incorporation into the previous public service business.

(3) Plaintiff clan's assertion

8 Of land and nine land, the current road is merely 22 square meters, and the remaining 149 square meters, excluding the current road, shall be assessed according to the land category.

(4) Plaintiff 1 and clans' assertion

Since the roads of urban planning facilities between 5 and 6 land and the vicinity of 10 land will be opened, the development gains from the public works other than the project of this case shall be assessed by reflecting the development gains from 5 land, 6 land and 10 land.

B. Determination of the plaintiffs' common assertion

(1) Facts of recognition

In full view of the evidence evidence evidence evidence evidence Nos. 5 and Eul evidence Nos. 8, ① the appraiser selected the land of this case as a comparative standard with or similar to the land of this case and the specific use area, surrounding environment, etc., according to the land price fluctuation rate. ② The appraiser for the ruling divided the comparison items of individual factors into street conditions, access conditions, environmental conditions, demarcated land conditions, administrative conditions, and other conditions, and applied 0.33 to the land of 4 and 9 by the gap rate of other conditions on the ground that the land is land category or the current status (However, the subsequent examination was conducted with respect to the area of current road of 171 square meters in total of 8 and 9 land). The appraiser omitted the land lot number of 9,000 square meters in consideration of the comparison items of individual factors, ③ The appraiser omitted the land number of 15,000 square meters in order to recognize the addition of land number of 9,000 square meters in the neighboring land.

(2) Whether there is an illegality of an individual element’s non-bruption

Since the appraiser's judgment on the gap in individual factors can be somewhat different according to the professional and subjective opinion of the appraiser because it is impossible to determine the difference in individual factors in terms of specific measurements and accurate values, so it does not seem that there is any error in the judgment of the appraiser in respect of the application of the gap in individual factors.

(3) Whether the application of the amended value of other factors is unlawful

According to the above facts, the compensation example adopted by the adjudication appraiser is located in the vicinity of each land of this case and the situation of its use and surrounding environment are equal or similar to that of the land of this case, as well as the evaluation price is also normal and thus, it is deemed that it constitutes a precedent that may affect the evaluation of appropriate compensation for each land of this case. Thus, it does not seem that there was any error in the judgment of the adjudication appraiser on the application of

(4) Sub-determination

Therefore, the common argument of the plaintiffs is without merit.

C. Determination on Plaintiff 1’s assertion

Article 25(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Enforcement Rule of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects") provides that the unclaimed land which was previously implemented and the compensation has not been paid shall be assessed by considering the current status of use at the time of incorporation into the previous public project, but where the current status of use at the time of incorporation into the previous public project cannot be known, the land category

In full view of Gap evidence Nos. 5 and Eul evidence Nos. 6 and Eul evidence Nos. 10, comprehensively taking account of the overall purport of the pleadings, ① the ○○○○○ unit in the Army completed the survey of land to be incorporated into the roads on November 20, 1982 and requested the Gyeonggi-do head to file a partition report on land. ② The division protocol attached to the ○○○○○ unit in the Army at the request of the filing of a partition report by the Gyeonggi-do Masan-ri (number 1 omitted) and the 3,590 square meters in the Masan-ri (number 1 omitted) Masan-ri (number 2 omitted) Masan-si in the Gyeonggi-do, Masan-gun, Masan-ri (number 2 omitted), and the fact that the land category was changed to the 115 square meters in the name of the land after the alteration to the 1115 square meters in the name of the land following the change to the 4th of the administrative district.

According to the above facts, it is reasonable to view that the land was included in the roads before and after the 1982 request the ○○○○ Military unit for the report of partition of the land to the head of the Gyeonggi-do Macheon-do, but the compensation therefor was not paid. Thus, it is reasonable to view that the land falls under the unregistered land as stipulated in Article 25(1)

Therefore, the plaintiff 1's assertion is justified.

D. Judgment on the plaintiff clan's assertion

In full view of the overall purport of the pleadings in the evidence No. 12 and the result of the commission of surveying and appraisal to Nonparty 1 of this court (hereinafter “survey and appraisal appraiser”) with respect to the following: (a) the survey and appraisal appraiser is an open space where the total area of 8 land and 9 land is not packed with 94 square meters; (b) 55 square meters is a concrete package; and (c) 22 square meters is a concrete package road; and (d) the appraisal opinion was presented that the 8 and 9 square meters is a concrete package; and (b) even based on satellite photographs on the 8 and 9 land, the fact that the 22 square meters is divided into 5 square meters and concrete packageed with 171 square meters among the total area of 8 and 9 land. It is insufficient to reverse the said recognition only on the basis of the statement No. 11.

According to the above facts of recognition, the current status of eight and nine land is merely 22m2m2, among the current status of 171m2. Therefore, the plaintiff clan's assertion is with merit.

E. Judgment on the plaintiff 1 and clans' assertion

In full view of the purport of the argument in Gap evidence No. 7, the Governor of the Gyeonggi-do shall make a decision on the road zone (revision) with respect to the Masan-Masan-Masan-si Road Packing work from Dong-dong-dong to Masan-si, Masan-si. On May 1, 2006, the Gyeonggi-do Public Notice No. 2006-132 may be recognized. On the other hand, considering the overall purport of the argument in the evidence No. 5 to No. 8, it can be recognized that the initial public notice of the project in this case is on March 31, 2003. Thus, even if the 5 and 6 and 10 land are located near the above Masan-Masan-Masan-Masan Road Packing work, in light of the fact that the initial public notice of the public notice of the approval of the project in this case is prior to the above Masan-Masan-Masan-Masan-Mansan-Mansan-Mansan-Man-Man-Man-Man-Man-Man-Man-do, respectively.

Therefore, Plaintiff 1 and clans' arguments are without merit.

(f) Fair compensation for losses;

(1) As a result of the appraisal on Nonparty 2’s entrustment to Nonparty 1 and the result of the appraisal and supplementation of the said appraiser’s land (hereinafter “court appraiser 2”), comprehensively taking into account the overall purport of the pleadings, the court appraiser divided the following into account: (i) the specific-use area of the instant land, the current use thereof, and the surrounding environment into account; (ii) the premium rate of 607 square meters (one and three parcels of land); (iii) the premium rate of 1,625 square meters (4 omitted); (iv) the land number of 7,000 square meters (one and six parcels of land and eight and twelve parcels of land); (v) the land number of 8,000 square meters (one and five parcels of land); (v) the land number of 7,000 square meters (one and five parcels of land); and (v) the land number of 9,500 square meters (one and five square meters of land); and (v) the land number of 9,507 square meters (one and other applicable conditions of land); and nine different conditions of land.

(1) The Plaintiff’s 1,000 Masan-ri (number 1 omitted), 221, 459, 101, 483, 200 Masan-ri (number 1 omitted), 304, 484, 547, 00 Maol-si 2453, 111, 585, 600 (number 215, 208, 467, 205, 207, 467, 205, 207, 2047, 205, 207, 467, 205, 207, 207, 305, 47, 305, 206, 47, 305, 204, 200 (number 11 omitted), 940,500,300,537,364,537,5,3644, 207, 367,44, 207, 2

(2) As long as there is no evidence to prove that there was an error in comparison with the individual factors of the health team, the judgment and the court appraisal, etc., with respect to the legitimate compensation for losses, the question of whether each of the appraisal is recognized as a legitimate compensation amount falls under the discretion of the fact-finding court, unless it is contrary to the logical rules and empirical rules. In addition, the court’s appraisal presented a ground for calculating more detailed factors than the judgment, and the court’s appraisal assessed 4 land as a road which is not a non-unclaimed land. The court’s appraisal, such as the assessment based on the premise that the portion of the 8 land and the 9 land is 74 square meters in total, is 74 square meters in size, is determined as a more appropriate assessment and assessment of the compensation amount of each of the instant land

(3) Therefore, the Defendant is obligated to pay Plaintiff 1 5,29,400 won (=727,634,400 won - 672,35,000 won) which is the difference between the compensation for losses under the court’s appraisal and the compensation for losses under the court’s appraisal (=76,412,00 won - 72,128,000 won - 72,128,000 won) and each of the above amounts are 4,284,000 won (i.e., the difference between the compensation for losses under the court’s appraisal and the compensation for losses under the court’s appraisal; 5% per annum from the day following the date of expropriation under the first expropriation ruling to Oct. 24, 2012; 205% per annum from the next day to the date of full payment; 30% per annum 209,7405,710,500,50,0000 per annum under the Civil Act.

3. Conclusion

Therefore, the plaintiff 1 and the clan's claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. The plaintiff 2's claims are accepted for reasons, and provisional execution is not ordered for a considerable reason not to do so. It is so decided as per Disposition.

Judges Kim Jong-hee (Presiding Judge)