[2] In a case where the compensation for losses under Article 79(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and the claim for damages under Article 44(1) of the Framework Act on Environmental Policy are established simultaneously with respect to actual damages, whether a business operator may exercise two claims simultaneously (negative), and whether a claim for damages may be filed even where a claim for damages cannot be exercised after the deadline for claiming compensation for losses under the term "one year from the date of completion of construction of the relevant

[3] Whether a person who suspends his/her business outside a zone where public works are performed may immediately file a claim against a project operator for compensation for business losses pursuant to Article 47(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects without going through the adjudication procedure under Articles 34 and 50 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative)

[4] In a case where the competent Land Tribunal rendered an adjudication that a certain item of compensation falls under the objects of statutory compensation for the acquisition of land, etc. for public works and the compensation therefor, thereby misunderstanding facts or misunderstanding legal principles, the lawsuit filed by the person who received compensation and the other party thereto are not subject to compensation

Although a business loss outside such a zone for the implementation of public works may occur simultaneously with the implementation of public works, there are different causes and timing of occurrence. Therefore, it is difficult for a project operator to specifically understand the existence and scope of the duty to pay business loss compensation unless he/she specifically states the details of the business loss incurred by a business operator outside the zone for the implementation of public works. It limits the deadline for the compensation for loss under Article 79(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects within one year from the completion date of construction, while limiting the deadline for the compensation for loss under Article 79(2) of the same Act within one year from the completion date of construction, the compensation shall be made at the request of the project operator [Article 64(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Enforcement Rule") or as a requirement for compensation for loss, which is an abstract general provision that provides "other unavoidable reasons" without any particular restriction on the causes of the business loss occurring outside the zone for the implementation of public works.

In light of the characteristics of business loss compensation outside a zone where public works are performed and the principle of fair compensation prescribed by the Constitution, “where suspension of business is inevitable for a certain period of time due to the implementation of public works,” which is the requirement for business loss compensation outside a zone where public works are performed, should be interpreted as “where suspension of business is inevitable for a certain period of time due to the implementation of public works,” not to mean where suspension of business is inevitable due to the implementation of public works, but to include cases where suspension of business is inevitable due to the type, structure, use, etc.

[2] Compensation for losses under Article 79(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) and compensation for losses under Article 44(1) of the Framework Act on Environmental Policy differs from the applicable provisions, requirements, and effects. It is a separate claim established upon fulfillment of each requirement. However, if the claim for compensation for losses already includes the elements of “compensation for damages” and it is deemed that both claims can be exercised at the same time with regard to the same contents, the problem of double compensation arises. Thus, even if both claims are established at the same time, a business operator may selective exercise only one of them, and may not exercise both rights at the same time. In addition, even if the period of claim for compensation for losses (Articles 79(5) and 73(2) of the Land Compensation Act) referred to as “one year from the date of completion of construction of the relevant project,” even if the claim for compensation cannot be exercised even if the requirements of compensation for losses are more satisfied.

[3] In full view of the contents and legislative purport of Articles 26, 28, 30, 34, 50, 61, 79, 80, and 83 through 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), in order for a person who suspends his/her business outside a zone where public works are performed to receive compensation for operating losses from a project operator pursuant to Article 47(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the person who suspends his/her business outside the zone where public works are performed may receive remedy for damages pursuant to Articles 83 through 85 of the Land Compensation Act only when he/she objects to the adjudication after going through the adjudication procedure stipulated in Articles 34 and 50 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”). It is not allowed to immediately claim compensation against the project operator without going through the adjudication procedure.

[4] In a case where a certain item of compensation falls under the objects of compensation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, but the competent Land Tribunal makes an erroneous adjudication that does not fall under the objects of compensation due to misconception of facts or misunderstanding of legal principles, the person subject to compensation shall not file a lawsuit seeking cancellation of such adjudication against the competent Land Tribunal, but shall file a lawsuit seeking an increase or decrease of compensation under Article 85(2) of the Act on the Acquisition of Land, etc.

1. Judgment on the Defendant’s ground of appeal

A. As to the assertion of violation of jurisdiction (Ground of appeal No. 1)

(1) According to Article 64(1)2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule”), where a person who operates a business outside a zone subject to compensation for operating losses falls under a case where it is inevitable to suspend his/her business for a certain period due to the suspension of access roads or other unavoidable reasons, due to the implementation of a public project, he/she shall be deemed to be incorporated into a zone in which the public project is performed upon the business operator’s request and compensate for such losses. Such right to compensation is a kind of compensation for special sacrifice arising from a legitimate exercise of public authority such as the implementation of a public project, which is a public project’s right, in light of the overall equitable burden of compensation for losses, and thus, the litigation pertaining thereto must be based on an administrative litigation procedure, not on civil litigation.

In order to guarantee the property rights of all citizens and to pay fair compensation for the expropriation of property rights due to public necessity (Article 23 of the Constitution of the Republic of Korea). In this regard, as a result of the implementation of public works, the implementation of the public works is to prepare detailed regulations on the standards, etc. for compensation for indirect losses outside the area where the public works are performed, or to delegate the authority to set detailed regulations on the subordinate laws and regulations.

Although business losses outside such a zone for the implementation of public works occur simultaneously with the implementation of public works, there are different causes and timing of occurrence. Therefore, it is difficult for a project operator to specifically understand the existence and scope of the obligation to pay business losses unless he/she specifically states the details of business losses incurred by a business operator outside the zone for the implementation of public works. It limits the period of compensation for losses under Article 79(2) of the Land Compensation Act within one year from the completion date of construction (Article 64(1) of the Enforcement Rule), while limiting the period of compensation for losses under Article 79(2) of the Land Compensation Act within one year from the completion date of construction (Article 64(1) of the Enforcement Rule) or the requirements for compensation for losses, which is an abstract general clause, "other inevitable reasons" without any restriction on the causes of business losses incurred outside the zone for the implementation of public works. (Article 64(1)2 of the Enforcement Rule) is an indirect loss in consideration of these characteristics.

In light of the characteristics of business loss compensation outside a zone where public works are performed and the principle of fair compensation prescribed by the Constitution, “where suspension of business is inevitable for a certain period of time due to the implementation of public works,” which is the requirement for business loss compensation outside a zone where public works are performed, should be interpreted as “where suspension of business is inevitable for a certain period of time due to the implementation of public works,” not to mean where suspension of business is inevitable due to the occurrence of the implementation or implementation of public works, but to include cases where suspension of business is inevitable due to the type, structure,

Meanwhile, compensation for losses under Article 79(2) of the Land Compensation Act and compensation for damages under Article 44(1) of the Framework Act on Environmental Policy differs from the relevant underlying provisions, requirements, and effects. It is a separate claim established upon fulfillment of each of the requirements. However, if the claim for compensation for losses includes the elements of “compensation for damages” and it is deemed that both parties can exercise the same right at the same time as to the same time, the problem of double compensation arises. Therefore, even if both parties’ claim as to the same factual damage are established at the same time, it is reasonable to view that the business operator can exercise only one right selectively, and that it may not exercise both rights at the same time. In addition, even if the period of request for compensation for losses (Articles 79(5) and 73(2) of the Land Compensation Act), “one year from the date of completion of construction of the relevant business,” which is “one year from the date of completion of construction of the construction of the relevant project, the claim for compensation for damages can still be exercised even if the requirements

(2) The lower court determined as follows.

(A) Although the pertinent provisions do not provide for the compensation for losses arising from the implementation of the instant project, it is reasonable to interpret that the relevant provisions of the Land Compensation Act may apply mutatis mutandis to the compensation for the said losses in cases where the implementation of public works could have easily predicted the occurrence of losses and the scope of such losses can be specified in detail.

(B) The right to claim compensation for losses arising from the execution of a public project is a right to seek compensation for losses which inevitably arise due to a legitimate public project, and its nature differs from the rights under private law, such as the right to claim compensation under the State Compensation Act or the right to claim compensation for losses due to a default on obligations or tort under the Civil Act. The relevant dispute must be governed by the procedure of party litigation under public law as stipulated in Article 3 subparagraph 2 of the Administrative Litigation

(C) It is inevitable for the Plaintiff to transfer a sericultural company of this case due to noise, vibration, etc. caused by the operation of the route of this case as the instant sericultural company, which had continued to be equipped with the instant building, standing timber, and facilities prior to the date of the instant project approval. Since the scope of the loss can be sufficiently predicted to the sericultural company, and the scope of the loss can be specified, it constitutes losses inevitably caused by the implementation of public works. The Plaintiff has the right to claim compensation for the business loss resulting from the implementation of the instant project by analogy of the relevant provisions on Land Compensation Act by applying mutatis mutandis to the Land Compensation Act.

(3) Examining the facts established by the lower court in light of the aforementioned provisions and legal principles, the Plaintiff’s right to claim compensation for losses incurred to the Defendant, who is the project implementer, in relation to the business loss incurred from the sericultural company outside the instant zone where the instant project was implemented, due to the implementation of the instant project shall be deemed to have occurred directly based on Article 79(2) of the Land Compensation Act and Article 64(1)2 of the Enforcement Rule.

Therefore, while the lower court erred by deeming that the Plaintiff’s claim for compensation for losses is recognized by applying mutatis mutandis the relevant provisions to the Land Compensation Act, it is justifiable to have concluded that the Plaintiff’s claim for compensation for losses was established due to the implementation of the instant project, and the relevant lawsuit ought to be governed by the relevant party litigation procedure under public law. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the

B. As to the assertion regarding the requirement of lawsuit seeking an increase or decrease of compensation (Ground of appeal No. 2)

(1) As to the assertion of defects in the adjudication procedure

(A) In full view of the contents and legislative purport of Articles 26, 28, 30, 34, 50, 61, 79, 80, and 83 through 85 of the Land Compensation Act, in order for a person who suspends his/her business outside a zone where public works are performed to receive compensation for operating losses from a project operator pursuant to Article 47(1) of the Enforcement Rule of the Land Compensation Act, the person who suspends his/her business outside a zone where public works are performed to receive compensation for operating losses may receive remedy pursuant to Articles 83 through 85 of the Land Compensation Act only when he/she is dissatisfied with the said adjudication after undergoing the adjudication procedure prescribed in Articles 34, 50 of the Enforcement Rule of the Land Compensation Act (see Supreme Court Decision 2009Du10963, Sept. 29, 201).

(B) The court below erred in finding that the Plaintiff’s instant claim constitutes a claim for compensation by analogy of the relevant provisions of the Land Compensation Act, but it is not necessary to go through the adjudication procedure stipulated in the Land Compensation Act. However, even if the Plaintiff assumed that it should go through the adjudication procedure prior to the claim for compensation, the court below’s additional and family determination that the Plaintiff may be deemed to have gone through the lawful adjudication procedure is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles

(2) As to the assertion of lack of qualification for the defendant

In a case where the competent Land Tribunal rendered an adjudication that the compensation items fall under the scope of compensation under the Land Compensation Act by misunderstanding facts or misunderstanding legal principles, the person subject to compensation shall not file a lawsuit seeking cancellation of such adjudication against the competent Land Tribunal, but shall file a lawsuit seeking an increase or decrease of compensation under Article 85(2) of the Land Compensation Act against the project operator (Supreme Court Decision 2015Du4044 Decided July 20, 2018).

The lower court determined that the Korea Railroad Corporation, not the operator of the instant business, should file a lawsuit seeking an increase or decrease of compensation against the Defendant, who is the operator of the instant business, rather than the Korea Railroad Corporation that operates high-speed railroads.

Although the reasoning of the lower judgment is partly inappropriate, the lower court’s conclusion that the Defendant, who is the implementer of the instant project, was disqualified for the Defendant is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the eligibility for the Defendant to file an increase or decrease lawsuit

C. As to the assertion regarding the amount of compensation for loss (Ground of appeal No. 3)

The appraiser’s appraisal result shall be respected unless the appraisal method is against the rule of experience or unreasonable (see, e.g., Supreme Court Decision 2006Da67602, Jul. 9, 2009).

The lower court acknowledged the facts as indicated in its reasoning based on the result of the instant appraisal, etc., and determined that the Defendant’s total of KRW 30,950,000,000, out of the instant standing timber, was the business loss of the instant sericultural company, which the Defendant should compensate the Plaintiff for.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is acceptable to accept the appraisal result of this case and determine the scope and amount of compensation. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds

D. As to the assertion regarding damages (Ground of appeal No. 4)

(1) As to the existence of liability for damages

The court below held that the defendant is liable to compensate the plaintiff for damages caused by the environmental pollution of noise, vibration, electronic wave, etc. on the ground that environmental pollution under Article 44 (1) of the Framework Act on Environmental Policy includes damage to human health or the environment due to noise, vibration, etc., on the premise that the victim who has suffered damage exceeding the tolerance limit due to noise, vibration, etc. is obligated to compensate unless there are special circumstances, even though there is no reason for such damage. After completing the course of this case, the defendant completed the course of this case and opened the course of this case and let the Korea Railroad Corporation operate high speed trains on the route of this case, the quality of silkworm eggs produced by the diving company of this case due to noise, vibration, and electronic waves, the refusal to receive silkworm eggs from the seeds of the Forestry Technology Institute of Jeollabuk-do, which is supplied with the above silkworm eggs, and the refusal to receive silkworm eggs from the diving farmer.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, we affirm the lower judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding tort liability or exceeding

(2) As to the scope of liability for damages

Based on the appraisal results of this case, the lower court acknowledged the facts as indicated in its reasoning, and determined that the sum of KRW 40,395,040 for the actual income of the suspension period and the expenses for sericultural entrustment management was the damage of the sericultural company of this case, which the Defendant shall compensate the Plaintiff for.

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is acceptable to accept the appraisal result of this case and determine the scope and amount of damages. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err

(3) As to the defense of repayment

The lower court rejected the Defendant’s assertion that the Nonparty’s compensation KRW 10,016,240 paid by the Nonparty from the Defendant Intervenor was not included in the scope of the instant liability for damages.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s judgment that determined the cause of damages differently is acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of

2. Judgment on the Plaintiff’s grounds of appeal

A. As to the scope of liability for damages

① The lower court rejected the instant sericultural company’s claim for compensation for losses arising from operating income, fixed expenses, and ② relocation expenses of the instant building.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, we affirm the lower judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on business loss compensation outside the public works implementation

B. As to the scope of liability for damages

(1) The lower court determined that the period of temporary closure following the relocation of the sericultural company of this case, which the Defendant is liable to compensate the Plaintiff, was four months from April 2, 2015 to August 1, 2015, which began to operate a railroad due to the opening of the instant route.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, we affirm the lower judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding tort liability or exceeding

(2) The lower court rejected the claim for damages on the remainder, on the grounds that only part of the cost of diving management incurred by the Plaintiff was established, on the following grounds: ① the value decline of the instant land; ② the amount equivalent to the cost of relocating the instant building; ③ depreciation costs during the period of suspension; and ④ the liability for damages on the part of the cost of diving management entrusted

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, we affirm the lower judgment. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding tort liability or exceeding

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by the plaintiff are assessed against the plaintiff, and the costs of appeal by the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)