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(영문) 대법원 1987. 3. 10. 선고 84누158 판결

[토지수용재결처분취소][집35(1)특,469;공1987.5.1.(799),649]

Main Issues

(a) The validity of an application for adjudication, where public project operators have failed to pay or deposit the indemnity adjudicated by the Land Tribunal by the time of expropriation;

(b) Invalidation of adjudication and application for adjudication, and validity of project approval;

(c) Where an administrative disposition in dispute is null and void, a copy of the judgment of assessment;

Summary of Judgment

A. Even if the contents of land expropriation show the effect of forced acquisition of other person's property rights by a public project operator for the public project, it is reasonable to interpret the provisions of Article 65 of the Land Expropriation Act as the condition of the payment of compensation as well as the application for adjudication, which is the premise of the above decision of the Land Expropriation Committee as well as the premise of the decision, inasmuch as the public project operator does not pay or deposit the compensation adjudicated by the time of expropriation.

B. If the adjudication becomes void, the application for adjudication also becomes void, so if the application for adjudication is not filed within one year from the date of notification of the project approval under Article 17 of the Land Expropriation Act, the project approval also becomes void and the entire procedure for expropriation shall be returned to blank.

C. In a case where an administrative disposition in dispute is null and void, there is no administrative act which has the effect to maintain the administrative disposition, so the circumstances under Article 12 of the former Administrative Litigation Act (No. 213 of August 24, 1951) cannot be ruled.

[Reference Provisions]

(a)Article 65(b) of the Land Expropriation Act; Article 17(c) of the former Administrative Litigation Act (Act No. 213, Aug. 24, 1951);

Reference Cases

C. Supreme Court Decision 70Nu60 decided Jun. 30, 1970; 69Nu126 decided Jul. 24, 1970

Plaintiff-Appellee

Plaintiff

Defendant, the superior, or the senior

The Central Land Expropriation Committee

Intervenor joining the Defendant

The Minister of National Defense

Judgment of the lower court

Seoul High Court Decision 82Gu617 delivered on January 24, 1984

Text

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal by the defendant and the defendant joining the defendant are examined together.

Even if the contents of land expropriation show the effect of compulsory acquisition of property rights of other persons to public project operators, it is the condition of payment of compensation, so it is reasonable to interpret Article 65 of the Land Expropriation Act that "if a public project operator fails to pay or deposit compensation decided by the competent Land Expropriation Committee by the designated time of expropriation, the above adjudication shall lose its effect" as well as an application for adjudication which is the premise of the above adjudication of the Land Expropriation Committee, unless the public project operator pays or deposits the compensation which has been decided by the competent Land Expropriation Committee by the designated time of expropriation.

The court below is just in holding that the defendant's ruling (i.e., June 24, 1980) has no effect on the land owned by the intervenor, who is an entrepreneur, and has not paid or deposited the compensation by the time of expropriation in accordance with the defendant's ruling regarding the land owned by the plaintiff as an area for national defense and military projects (i.e., the creation of a training book for the Busan-si Reserve Forces in Busan-si) pursuant to the above opinion, and therefore, the defendant's ruling (i.e., the plaintiff's ruling 1980) has no effect on the part of the intervenor, and the plaintiff's application for adjudication has no application for adjudication within one year from the date of the public notification of the approval under Article 17 of the Land Expropriation Act

In addition, the court below held that the defendant's ruling of this case (as of June 29, 1982) based on the premise that the defendant still still remains valid the approval of the previous project and the application for adjudication, such as the approval of the Minister of Construction and Transportation's project and the application for adjudication, etc., to expropriate the land owned by the plaintiff which was not paid or deposited by the intervenor by the time of expropriation, shall not render a judgment on the circumstances provided in Article 12 of the former Administrative Litigation Act (as of August 24, 1951, Act No. 213) because there is no effective administrative act to maintain the administrative disposition in dispute, since there is no effective administrative act to maintain it, (see Supreme Court Decisions 70Nu60 delivered on June 30, 1970, and 69Nu126 delivered on July 24, 1970). Such a decision of the court below is justified and there is no error in the misapprehension of legal principles and incomplete deliberation as to administrative litigation.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yellow-ray (Presiding Justice)

본문참조조문