Plaintiff (Law Firm Roice, Attorneys Jeong Jong-hee et al., Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm Han-ro, Attorneys Song-Gyeong et al., Counsel for defendant-appellant)

January 31, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 3,08,435,600 won with 5% interest per annum from February 10, 2010 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Details of ruling;

(a) Approval and public notification of projects;

- Railroad construction projects (hereinafter referred to as “the project in this case”) (hereinafter referred to as “the project in this case”)

- No. 2009-185 announced by the Ministry of Land, Transport and Maritime Affairs on April 16, 2009, August 27, 2009

(b) Project operator: Defendant;

(c) Adjudication on expropriation by the Central Land Expropriation Committee on December 17, 2009;

- Land to be expropriated: Land divided into 3,936 square meters of forests and fields ( Address 1 omitted), 3,936 square meters of forests and fields ( Address 2 omitted), as seen below, and land divided into 14,876 square meters of forests and fields (hereinafter “land before the instant subdivision”); hereinafter “land No. 1”) and its obstacles

- Compensation for expropriation: 66,180,300 won (the first land of this case KRW 58,252,800 + obstacles KRW 7,927,500)

- The plaintiff's assertion of expropriation of remaining land and claim of compensation for earth and rocks buried shall be dismissed in entirety.

- Commencement date of expropriation: February 9, 2010

[Ground of recognition] The fact that there is no dispute, Gap's evidence No. 13, and the purport of whole pleading

2. The assertion and judgment

A. The plaintiff's assertion

(i) Claim for compensation for remaining land;

The land before the division of this case was extended several times since the plaintiff's deceased non-party obtained first permission to collect earth and rocks from the Dasan market on February 8, 1986. The non-party and the plaintiff had operated a stone collection site for about 23 years from the above land until February 2, 2009. As to the plaintiff's report to collect earth and rocks on January 23, 2009, the land of this case was included in the part of the land before the division of this case, namely, the land of this case, the land of this case was included in the business facilities of this case, and if the above land continues to be operated a stone collection site on the above land, the extension of the permission period of this case can not be used as a stone collection site more than the land before the division of this case, and the defendant, who is the implementer of the business of this case, shall not be allowed to use the remaining land of this case as the land of this case, the remaining land of this case or the remaining land of this case, the land of this case, the land of this case, the land of which is no more than 1.

(ii) claims for reimbursement of soil and stone;

In light of the fact that the non-party paid a large amount of purchase price and acquired the land before the instant subdivision, which was reflected in the fact that the land before the instant subdivision was actually used for approximately 23 years, and that the Plaintiff was no longer unable to obtain an extension of permission to collect earth and stones on the land before the instant subdivision due to the implementation of the instant project, but according to the result of the court appraiser’s appraisal, it is reasonable to evaluate that the soil and stones belonging to each of the instant lands are objectively adequate economic value, and therefore, the Defendant should pay the Plaintiff the amount of compensation for the soil and stones belonging to each of the instant lands, including KRW 2,982,494,00,00, and delay damages therefrom.

(b) Related statutes;

director Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201)

Article 74 (Request for Purchase and Expropriation of Remaining Land, etc.)

(1) Where it is substantially impracticable to use the remaining land for its original purposes because part of a group of land belonging to the same landowner has been purchased or expropriated through consultation, the relevant landowner may request the project operator to purchase the remaining land, and may request the competent Land Tribunal to expropriate it after project approval has been granted. In such cases, a request for expropriation shall be made only when the consultation on purchase has not been effected, and it shall be made by the completion

Article 75 (Indemnity for Goods, such as Buildings, etc.)

(3) Compensation for soil, stones, sand or gravel belonging to land (limited to cases where soil, stones, sand or gravel is acquired or used separately from the relevant land) shall be provided at a reasonable price assessed by considering the transaction price, etc.

(c) Fact of recognition;

1) On December 24, 1983, the Nonparty purchased 520,000,000,000 won of the land prior to the instant subdivision, which is State property, from the Hansan market, and completely paid the price thereof on February 21, 1984 (However, on January 22, 1991, the registration for the transfer of ownership in the name of the Nonparty was made). On February 8, 1986, the Nonparty, from the Hansan market, obtained permission for the collection of soil and stones from the same day until February 7, 1991, and from November 1, 1986, with the permission for the collection of soil and stones of 116,431 cubic meters from the same day, with the trade name “○○ Quarrying” from the above land.

2) After February 7, 1991, the expiration date of the above permission for collection of earth and stones, the non-party obtained again from the Gasan market from February 7, 1991 to February 8, 2001 the permission period for collection of earth and stones from the Gasan market to February 12, 190. On May 30, 1994, the permission for the extension of the permission period for collection of earth and stones from the 12,00 cubic meters of 3,846 square meters of 4,426 square meters of the permitted area, and the permission for the alteration of the permitted area from 12,00 cubic meters to 14,90 cubic meters of 15,298.

3) On February 3, 2001, before the period of permission extended as above expires, the Plaintiff obtained permission to collect earth and rocks from the following market: (a) the new period of permission for collecting stone is 172,594 cubic meters from the Hansan market; (b) the period of permission is 15,510 cubic meters from February 3, 2001 to February 2, 2006; (c) the new period of permission for collecting stone is 15,510 cubic meters from January 2, 2006; and (d) the period of permission extended as of February 2, 2009.

4) However, on January 23, 2009, the Plaintiff rejected the Plaintiff’s application on the ground that the period of permission, among the existing permitted matters, extended from January 23, 2009 to December 31, 2013 and the quantity of the earth and rocks collected from the existing 15,510 cubic meters to 240,128 cubic meters, submitted a report on the change of the quantity of the earth and rocks collected, and the following industry is underway the land compensation for construction work of the existing high-speed railway, and the related agencies are under consultation for the approval of the project implementation plan, and thus, the report on the change of the earth and rocks was not possible at the present point of time.”

5) On October 15, 2009, the Plaintiff filed an appeal seeking the revocation of the return disposition on the Hysan market as this Court Decision 2009Guhap22599, but this court rendered a judgment against the Plaintiff on May 17, 201, when considering all circumstances, such as the fact that approximately KRW 5,038 square meters of the land before the instant subdivision is included in the railroad site, and the restriction is made not to grant permission to collect earth and stones for mountainous districts within 100 meters from high-speed high-speed railroads under relevant Acts and subordinate statutes, such as the Management of Mountainous Districts Act, etc., the court rendered a judgment against the Plaintiff on the ground that the rejection of the report on the return of the report on the collection of earth and stones by the Plaintiff is legitimate due to the serious public interest necessity for smooth

6) Meanwhile, on April 22, 2009, the instant land prior to the instant partition was divided into three parcels of forest land of 6,796 square meters, 3,936 square meters of forest land of 4,144 square meters of forest land of 4,144 square meters of 5,938 square meters of forest land of 5,938 square meters of 5,938 square meters of forest land of 5,938 square meters of (2 omitted) in the same Ri (2 omitted) on April 14, 2010. The said container 4,144 square meters of forest land of 5,144 square meters was subdivided into 3 square meters of forest land of 858 square meters (3 square meters of this case) in the same Ri (3 omitted), and the said container 4,144 square meters of forest land of 5 square meters in the same Ri (5 omitted) on May 14, 2010.

[Ground of recognition] without any dispute, Gap evidence 1-2, 4, 2-1 through 4, Gap evidence 3-1 through 5, Gap evidence 5-1, Gap evidence 13, Gap evidence 16-1 through 5, Gap evidence 17, Gap evidence 18-1 through 4, and Gap evidence 19-1 through 5, the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) Determination on the claim for compensation for remaining land

A) Article 74(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 2011; hereinafter “Public Works Act”) provides that “If it is substantially difficult to use the remaining land for its original purpose because part of a group of land belonging to the same landowner is purchased or expropriated through consultation, the owner of the relevant land may request the project operator to purchase the remaining land and may request the competent Land Tribunal to expropriate the remaining land after the project approval is granted.” The term “the first purpose” refers to the specific purpose of the land actually being used at the time of the decision of expropriation, and it is considerably difficult to use “the use” means not only the case where it is physically difficult to use the remaining land, but also the case where it is possible to use the remaining land for social and economic purposes, i.e., it is not absolutely impossible to use it, but also the case where considerable expenses are required (Supreme Court Decision 2002Du4679, Jan. 28, 2005).

Meanwhile, since collection of earth and rocks in forests directly affect the maintenance of national land and nature and the preservation of environment, it is not only an area subject to the restriction on collection of earth and rocks as prescribed by statutes, but also an area subject to such restriction on collection of earth and rocks, if the permission-granting agency deems it necessary for important public interests, such as the maintenance of national land and nature, and the preservation of environment, considering the current state, location, surrounding circumstances, etc. of land subject to the application for permission of earth and rocks (see Supreme Court Decision 94Nu5489 delivered on August 12, 1994). This legal principle also applies to an application for extension of the period for permission of earth and rocks. Thus, if there is any reason to deny or revoke the permission of earth and rocks itself, or if it is necessary for other important public interests, it may not be deemed that there is a proximate causal relation between losses due to the extension of permission of earth and rocks and public services (see Supreme Court Decision 206Da254290 delivered on September 20, 196).

B) In light of the above legal principles, the term of permission to collect earth and stones for each land of this case was expired on February 2, 2009, before the expropriation ruling of this case, upon the return of the Plaintiff’s report on the change of collection of earth and stones on January 23, 2009. ② The Plaintiff filed an appeal for cancellation of the above rejection disposition, but the court decided against the Plaintiff on the ground that it is necessary for the public interest to return the above rejection report of collection of earth and stones. ③ As long as the project of this case is implemented as it is, it is difficult for the Plaintiff to collect earth and stones for the land of this case to future. Rather, considering the fact that the Plaintiff is obligated to recover from each land of this case under the Mountainous Districts Management Act, it is reasonable to deem that the land of this case was “forest” as stated in the category of land at the time of the expropriation ruling of this case, and it is considerably difficult to view that the Plaintiff’s report on the change of usage of land of this case was rejected due to the implementation of the project of this case’s remaining land of this case.

2) Determination on claims for compensation against earth and stone

A) Article 75(3) of the Public Works Act provides that "where soil, stones, sand, or gravel belonging to land (limited to cases where soil, stones, sand, or gravel is separately acquired or used from the land in question) is subject to compensation at a reasonable price assessed by considering the transaction price, etc." In the above provision, "where soil, stones, sand, or gravel is separately acquired or used from the land in question" means cases where there are special circumstances, such as changing the form and quality of the land in question or collecting and collecting soil, stones, sand, or gravel is possible, or it is objectively recognized that there is an impact on the price of the land in question, and it is deemed that there is an economic value (see Supreme Court Decision 2002Du4518, Apr. 8, 2003).

B) According to the facts acknowledged earlier, although the Plaintiff and his network had been operating a stone collection site for about 23 years with permission to collect earth and stones on each of the instant land, the permission period expired last February 2, 2009, and even in the future where the instant project is implemented as it is, it would be difficult to obtain permission to collect earth and rocks on each of the instant land. Even if soil and rocks with economic value are buried in each of the instant land, so long as there is an administrative measure that can collect and collect them lawfully or are not possible, it cannot be said that the earth and rocks on each of the instant land are subject to compensation under Article 75(3) of the Public Works Act separately from each of the instant land. Accordingly, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-hwan (Presiding Judge)