[토지수용재결처분취소][공1990.12.1.(885),2286]
Whether the case where the two heads of money in the land to be expropriated are virtually unable to move to the adjacent area due to the opposition of residents constitutes the abolition of business under Article 24 (2) 1 of the Enforcement Rule of the Public Compensation for Loss of Public Use (affirmative)
Article 24 (2) 1 of the Enforcement Rule of the Public Compensation for Land Expropriation, which applies mutatis mutandis to the compensation for losses caused by the expropriation of land, includes cases where it is impossible to carry on business at any other place because of the special circumstances in Si/Gun/Gu adjacent to the place of business, making it impracticable to move the place of business in another place. Thus, since the Plaintiff, who had operated a house built by a housing construction project operator, was confirmed to move the house in the vicinity of the house, designated a candidate for five places of business in neighboring Guns, etc. to move the house, and submitted a written application for change of form and quality of land and a written application for forest damage permission to the competent administrative agency, but submitted the written application for change of form and quality to the competent administrative agency and the written application for change of forest damage permission, etc. to the head of other adjacent Guns, if it is anticipated that the installation of a house built in the same size is virtually impossible by the residents' opposition and thus it is impossible to move the place of business to the business.
Article 51 of the Land Expropriation Act, Article 4(3) of the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, and Article 24(2)1 of the Enforcement Rule of the same Act
Hongk Law Firm, Attorney Lee Jae-chul, Counsel for the plaintiff-appellant-appellant
The Central Land Expropriation Committee
Korea National Housing Corporation and the Defendant’s Intervenor Kim Jong-su, Counsel for defendant-appellant
Seoul High Court Decision 87Gu1503 delivered on October 10, 1989
The appeal is dismissed.
The costs of appeal are assessed against the defendant and the defendant joining the defendant.
1. We examine the second ground for appeal.
According to the reasoning of the judgment below, the court below, based on its adopted evidence, found the plaintiff's livestock industry and breeding stock business under the Livestock Industry Act and operated a fish farming business with the trade name called the net 1405, 1405, 140, 390, 651, 621, 621, 137, 29, 44, 70, and 70,000,000, and the total amount of 1942, including 39,000,000, 651, 651, 621, 137, and 137, 29, and 70,000, in order to move the above 1,000 farm land to the above 1,000,000,0000, 5,0000,000,0000,000,000,00,000.
2. We examine the first ground for appeal.
According to Article 51 of the Land Expropriation Act, business losses shall be compensated in addition to compensation for losses caused by expropriation of land. According to Article 4(3) of the Act on the Compensation for Public Loss applicable mutatis mutandis pursuant to Article 57-2 of the same Act, and Article 24 and Article 25 of the Enforcement Rule of the same Act, business losses that shall be compensated pursuant to Article 51 of the Land Expropriation Act are eventually divided into compensation for losses caused by discontinuance of business and compensation for losses caused by discontinuance of business, and Article 24(2)2 of the above Rules provides that business losses cannot be permitted in another place within the Si/Gun/Gu where the place of business is located or adjacent. According to the reasoning of the judgment of the court below, the court below did not err in the misapprehension of legal principles as to the above business losses caused by the removal of a new place of business and the cancellation of a new place of business under Article 24(2) of the former Enforcement Rule of the Livestock Industry Act. However, the court below's reasoning is that the plaintiff's establishment of a new place of business is not a new place of business.
Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)