[2] In a case where a prisoner’s re-construction of a building, etc. expropriated as compensation for losses as a business operator under the Value-Added Tax Act constitutes a case where goods or services are supplied for his/her own business, whether a business operator may seek compensation for losses equivalent to the value-added tax included in construction costs

[3] In a lawsuit on the increase or decrease of compensation, where there is a difference between the appraisal by an appraisal agency which forms the basis of the judgment and the appraisal by an appraiser selected by a court as the basis of the individual factors by different appraisal, etc., whether to choose one may belong to the court’s discretion (affirmative in principle) and whether there is an error in the comparison of individual factors, or whether the contents of an appraisal may be selected in violation of logical and empirical rules (negative)

[2] In cases where a prisoner is supplied goods or services to be used for his/her own business as a business operator liable to pay compensation under the Value-Added Tax Act, the value-added tax included in construction costs, etc. constitutes the input tax amount stipulated under Article 38(1)1 of the Value-Added Tax Act, and the inmate is entitled to be deducted or refunded from his/her own output tax amount. Therefore, the above value-added tax is not substantially borne by the inmate. Therefore, in such cases, the inmate cannot claim for compensation for losses equivalent to the above value-added tax against the business operator

[3] In a lawsuit on the increase or decrease of compensation, in case where the appraisal by an appraisal agency, which forms the basis of the judgment, and the appraisal by an appraiser selected by a court, are different from the appraisal by comparison of individual factors, in principle, whether to choose any one of the appraisal is at the discretion of a court. However, in a case where an appraisal is erroneous in comparison of individual factors or its contents are contrary to logical and empirical rules, it is not allowed to choose one of the appraisal.

1. Plaintiff’s ground of appeal

A. Article 75-2(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that “if the price of any remaining building is reduced or any other losses are incurred as a result of the acquisition or use of a group of buildings belonging to the same owner, the project operator shall compensate for such losses, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport: Provided, That in full view of the reduced price of the remaining building and the cost of repairing the remaining building (referring to the cost used for construction deemed generally necessary for equally maintaining utility so that the remaining parts of the building can be used for its original purpose: Provided, That no cost necessary for improving facilities required by the related Acts and subordinate statutes, such as the Building Act, shall be included) exceeds the price of the remaining building, the project operator may purchase such remaining building without taking account of the provisions of Article 75-2(1) of the same Act and Articles 34, 50, 61, and 83 through 85 of the same Act, and the legislative purport thereof, etc., the remaining building owner may immediately be subject to receive adjudication from the project operator under Articles 75-2 through 305-1 of the Act.

B. The lower court determined that the instant expropriation ruling and the instant objection ruling may not claim compensation for the remaining building losses in the instant lawsuit disputing the instant objection on the ground that they did not go through the adjudication procedure as to the losses of the remaining buildings stipulated in Article 75-2(1) of the Land Compensation Act, on the ground that they stated in the lower judgment (attached Form 1) Nos. 1 through 6, 8, and 20 listed in the table of [Attachment 1] list Nos. 1 through 6, and 20 listed in the list of the lower judgment (hereinafter “instant obstacles”) were compensated pursuant to Article 75(1) of the Land Compensation Act.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the procedure for compensation for losses of

C. In addition, the allegation in the grounds of appeal purporting that the reasonable compensation for the loss of remaining buildings under Article 75-2 (1) of the Land Compensation Act is the cost of newly installing a facility replacing the instant obstacles within the golf course, as seen earlier, the Plaintiff cannot seek the above compensation for the loss of the remaining building as the instant lawsuit, and thus, it cannot be accepted without further determination.

D. On the other hand, the lower court determined that this part of the lawsuit immediately filed without the adjudication procedure was unlawful, because the obstacles described in the [Attachment 1] list 7 [Attachment 1] in the lower judgment were not subject to the instant adjudication on expropriation and its objection.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

2. As to the Defendant’s ground of appeal

A. In a case where an inmate is supplied goods or services to be used for his/her own business as a business operator liable to pay compensation under the Value-Added Tax Act, the value-added tax included in construction costs, etc. falls under the input tax amount stipulated under Article 38(1)1 of the Value-Added Tax Act, and the inmate is entitled to be deducted or refunded from his/her own output tax amount. Therefore, the above value-added tax is not substantially borne by the inmate. Therefore, barring any special circumstance, the inmate cannot claim for compensation for losses equivalent to the above value-added tax against the business

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the amount calculated by the court appraiser at the first instance court and the lower court as compensation for the obstacles as stated in the table Nos. 3 through 6, 8, 9, 11 through 14 of the lower judgment among the obstacles in this case includes value-added tax (purchase tax amount) on construction costs, etc., and the Plaintiff is a company operating a golf course, and each obstacle is a building and structure constituting a golf course.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff’s new construction of facilities replacing each of the above obstacles in a golf course constitutes a case where goods or services to be used for his/her own business are supplied, and thus, the input tax amount included in the construction cost is subject to deduction or refund, and the Plaintiff is ultimately obligated to pay, and thus, it cannot be included in compensation for losses for obstacles.

Nevertheless, the court below calculated compensation for each obstacle including the input tax amount of value-added tax. In so doing, the court below erred by misapprehending the legal principles on the method of calculating compensation for losses, which affected the conclusion of the judgment.

B. In addition, in a lawsuit on the increase or decrease of compensation, where there is a difference between the appraisal by an appraisal agency which forms the basis of the judgment and the appraisal by an appraiser selected by a court differently from the individual factors, etc., in principle, whether each one of the appraisal should be selected is at the discretion of a court. However, in a case where an appraisal is erroneous in comparison of individual factors or its contents are contrary to logical and empirical rules, it is not allowed as it goes beyond the limits of discretion (see Supreme Court Decision 2012Du6773, Apr. 24, 2014, etc.).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the court appraiser appraised the obstacles of this case by applying Article 75(1) of the Land Compensation Act, Articles 33 and 35 of the Enforcement Rule of the same Act, etc. However, among the obstacles of this case, the compensation for the obstacles of this case was calculated as KRW 3.87 million per 1 square meter and KRW 7.210,000,000, respectively. < Amended by Presidential Decree No. 20358, Sep. 14, 2008; Presidential Decree No. 20348, Sep. 14, 2008>

In light of the above facts in light of the legal principles as seen earlier, in order to adopt the results of the court appraiser's appraisal as evidence, it is required to first examine the validity of the appraisal. However, the court below adopted the appraisal result which is difficult to obtain as above for the reasons stated in its reasoning. This goes beyond the limits of the court's discretion on adoption of the appraisal result, and the judgment of the court below which calculated compensation for the obstacles of this case based on this, is erroneous by failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim So-young (Presiding Justice)