1. The lower court determined that the instant disposition was unlawful, on the ground that the land category of the part (hereinafter referred to as “the part of the instant land”) excluding 28 meters among the state-owned land subject to the instant indemnity (hereinafter referred to as “land subject to the instant indemnity”) is being used as a gas station site, but is actually being used as a road, imposing indemnity calculated on the Plaintiff who occupied the instant land without permission on the basis of the individual support price.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. Article 72(1) of the State Property Act and Articles 71(1) and 29(1) and (2)1 of the former Enforcement Decree of the State Property Act (amended by Presidential Decree No. 25031, Dec. 30, 2013) provide that an indemnity for a parcel of land for which a publicly assessed individual land price exists shall be an amount equivalent to 120/100 of the amount calculated by multiplying the publicly assessed individual land price by the usage fee rate, and Article 11(3) of the Public Notice of Values and Appraisal of Real Estate Act (wholly amended by Act No. 13796, Jan. 19, 2016) provides that an individual land price shall be calculated by using the land price comparison table on the basis of the officially assessed land price of one or more reference land deemed to have similar usefulness to the relevant land.

In addition, as the reference land for determining the officially assessed individual land price, it is necessary to select the reference land in neighboring areas where the land use area, land category, land use (actual use), surrounding environment, location, and other natural and social conditions are the most similar (see, e.g., Supreme Court Decision 2006Du15288, Jan. 25, 2007).

B. According to the evidence duly admitted by the court below, the officially assessed individual land price for the subject land from 2008 to 2013 is determined and announced as the reference land price for the same land category (the site for gas station), and ② the subject land has a shape suitable for the site for gas station as the land which was packaged by the national highways; ③ the part of the subject land is part of the gas station operated by the plaintiff, which constitutes the part of the land which constitutes the part of the gas station operated by the plaintiff, and is used by the vehicle passing on the national highway to access the gas station or temporarily stop or stop for the purpose of rest by the gas station users; ④ The part of the instant land is not installed with the gas station.

C. In light of the aforementioned legal principles and relevant legal principles, there is sufficient room to deem that the instant land portion is not only the land category of the gas station, but also the passage that connects the neighboring national highways and the gas station facilities and constitutes part of the gas station site as it is provided for the oiling and relaxation of the gas station users. Therefore, it is difficult to conclude that the instant disposition, which calculated indemnity based on the publicly assessed individual land price calculated on the premise that the utility value of the instant land portion is similar to that of the gas station site, is unlawful.

Nevertheless, the lower court determined that the instant disposition was unlawful on a different premise, thereby misapprehending the legal doctrine on the method of calculating indemnity under the State Property Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, 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 Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il