[2] In a case where Gap produced stone for construction in the course of operating a stone collection station with permission to collect earth and rocks from his own land, but the permission to extend earth and rocks was refused due to the implementation of a high-speed rail construction project, and the compensation amount was calculated and decided without considering the economic value of the stones buried in the above land incorporated into the project site area, the case holding that the court below erred in the misapprehension of legal principles by denying the possibility of administrative measures to lawfully collect stone buried in the above land, thereby not being subject to compensation under Article 75 (3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where Gap produced stone for construction in the course of operating a stone collection station with permission to collect earth and rocks from his own land; after permission to extend earth and rocks was refused due to the implementation of a high-speed rail construction project, the compensation amount was calculated and decided without considering the economic value of stones buried in the above land incorporated into the project site area after the permission to extend earth and rocks was refused, the case holding that the court below erred in the misapprehension of legal principles in holding that the compensation cannot be made under Article 75 (3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works separately from the above land, on the ground that the economic value is assessed on the premise that the compensation for the stone, etc. belonging to the land subject to expropriation is recognized, even if it is impossible or impossible to obtain permission to collect earth and rocks or the permission to extend the collection period of earth and rocks due to the implementation of the pertinent public work project, which is the object of land expropriation, even if there is no possibility of administrative measures to deny the possibility of lawful collection of stone buried in the above land.

1. Article 75(3) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 201; hereinafter “Public Works Act”) provides that “The compensation shall be made at a reasonable price assessed by taking into account the transaction price, etc. for the soil, stones, sand, or gravel (limited to cases where soil, stones, sand, or gravel belonging to the relevant land becomes an object of acquisition or use separately from the relevant land) that belongs to the relevant land.” In the foregoing provision, “where soil, stones, sand, or gravel becomes an object of acquisition or use separately from the relevant land” means a case where there is an administrative measure lawfully capable of changing the form and quality of the land, or it is objectively recognized that it is possible and specifically affecting the price of the land, and it is evaluated that there is an economic value separate from the land” (see Supreme Court Decision 2002Du418, Apr. 8, 2003).

2. Review of the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted reveals the following facts.

A. On December 17, 2009, the Defendant obtained the approval of the execution plan for the construction project of Honam High-speed Railroad (hereinafter “instant project”), and obtained the approval of the execution plan from the Central Land Expropriation Committee on December 17, 2009, for the instant land owned by the Plaintiff (which was divided from the land before the instant subdivision) and its obstacles, the Defendant received the adjudication of expropriation on February 9, 2010, for the compensation for the instant land and its obstacles.

B. On December 24, 1983, the deceased non-party purchased the land prior to the subdivision of this case from the Yasan-gun before the subdivision of this case, which is State property, from the Yasan-gun on February 8, 1986, and obtained permission from the Yasan-gun on the said land from February 7, 1991 to the 116,431 cubic meters from the same day of the permission period, and operated the quarrying on November 1, 1986 with the trade name "0,00 stone collection site" from the above land.

C. After February 7, 1991, the expiration date of the above permission period for collecting earth and rocks, the Nonparty obtained again permission period from the head of Yasan-gun from February 7, 1991 to February 8, 2001, and the permission period for collecting stone from 12,00 cubic meters of Yasan-si. On May 30, 1994, the Nonparty obtained permission for altering the permitted area from 3,846 square meters to 4,426 square meters of 4,426 square meters of the previous permission area, and the collection quantity from 12,00 cubic meters to 14,90 cubic meters of 198. As the Nonparty died on February 15, 198, the Nonparty’s heir succeeded to the status of the permission period, the Plaintiff accepted a report on changing the name of the permission period for collecting stone from the above Mayor around March 30, 1998.

D. On February 3, 2001, the period of permission extended by the Plaintiff, around February 3, 2001, the new period of quarrying was 172,594 cubic meters for the land before the subdivision of the instant case, and the period of permission was 172,594 cubic meters for the collection of quarrying, from February 3, 2001 to February 2, 2006. The period of permission was 15,510 cubic meters for the collection of quarrying again on January 2, 2006. The period of permission was extended on February 2, 2009.

E. However, on January 23, 2009, the Plaintiff rejected the Plaintiff’s application on the grounds that the period of permission from January 1, 2009 to December 31, 2013, the Plaintiff extended the period of permission from the Dogsan City Mayor from January 1, 2009 to December 31, 2013, the amount of collection of earth and rocks to be changed to 240,128 cubic meters, and the Dogsan City, in accordance with the Defendant’s opinion on March 3, 2009, the land compensation is being promoted for the commencement of construction projects at the present Honam High-speed Railroad, and the consultation with the related agencies for the approval of the implementation plan of the projects.

F. Accordingly, on October 15, 2009, the Plaintiff filed an appeal seeking the revocation of the return disposition on the land return market in the Jeonju District Court 2009Guhap2259, but the said court rendered a judgment against the Plaintiff on the ground that the return of the Plaintiff’s report on the alteration of the collection of earth and rocks was lawful, and that the said judgment became final and conclusive around that time, considering all circumstances, including the following: (a) part of the land before the instant subdivision was included in the instant place of project construction and railroad site; and (b) the relevant Acts and subordinate statutes, such as the Management of Mountainous Districts Act, restrict the prohibition of collecting earth and rocks on mountainous districts within 100 meters from high-speed railroads; and (c) the return of the Plaintiff’s report on the alteration of the collection of earth and rocks, depending on the serious public interest needs for smooth implementation of the instant

G. Meanwhile, the appraiser of the first instance trial presented the appraisal opinion that the status of the land No. 1 in this case is superior to that of the instant land and that the available debt sales volume is 82,162 cubic meters, and calculated the assessed value as KRW 1,071,865,00 in excess of the compensation amount of the instant land No. 1, taking into account the following factors: (a) the running period, unit price, sales cost, presumed production cost, annual earnings, dividends rate, accumulation rate, corporate expenses, etc. of the instant land No. 1; and (b) the appraised value was calculated as KRW 82,162,00 in consideration of the appraisal factor.

3. According to the above facts, the Plaintiff had already produced stone for construction while operating a stone collection station on the ground prior to the ruling on expropriation of the land of this case. Although at the time of the above ruling on expropriation, it was refused to grant permission for the extension of the collection period of stone on the above stone collection ground at the time of the above ruling on expropriation, it appears that the Plaintiff could have obtained permission for the extension of the collection period of stone if it was due to the project of this case, and the Plaintiff could not obtain permission for the extension of the collection period of stone if it was not the project of this case. Furthermore, in light of the legislative purport of the Public Works Act to determine the compensation for losses suffered by landowners or persons concerned by acquiring or using the land, etc. necessary for public works through consultation or expropriation, when assessing its economic value on the premise of the recognition of compensation for losses on the stone, etc. belonging to the land subject to expropriation, such administrative measure should not be considered as being impossible or impossible because it denied the possibility of such administrative

In addition, in light of the above facts, including the acquisition value of the Nonparty’s land, the details of the operation of the stone collection station, and the result of appraisal by the appraiser of the first instance trial, etc., the stone buried in the land of this case can be used as building stones if collected and processed. Therefore, it can be objectively affected by the price of the land of this case.

Therefore, examining these circumstances in light of the aforementioned legal principles, it is sufficient to view that the stones belonging to the instant land No. 1 can be objectively evaluated as having economic value distinct from the ordinary use of land, and ultimately, it constitutes a case subject to acquisition or use separate from the instant land No. 1.

4. Nevertheless, citing the reasoning of the judgment of the court of first instance, the court below acknowledged that the land of this case, which is the land subject to expropriation, has been buried with stones having economic value, but determined that there is no administrative measure that can be lawfully recovered or it cannot be deemed possible to do so, and thus, it cannot be subject to compensation under Article 75(3) of the Public Works Act, separate from the land of this case. Therefore, the court below erred by misapprehending the legal principles on the compensation for stone, etc., which belongs to the land subject to expropriation as prescribed by the Public Works Act, thereby affecting the conclusion of the judgment. The ground of appeal

Meanwhile, according to the Plaintiff’s request for change of the purport of appeal and the legal brief submitted by the lower court, the Plaintiff is dissatisfied with the claim for compensation against the stones belonging to the land No. 1 of the first instance judgment. However, the lower court, citing the reasoning of the first instance judgment, rendered a judgment on the portion that the Plaintiff is not dissatisfied with. Therefore, this part of the lower judgment’s reasoning points out that it is unnecessary to determine

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)