[1] The objective reason to regard the waterway site as the site for a ditch, which is to be assessed at a price lower than that, according to the method of appraisal of the general land under the Enforcement Rule of the Public Use and Compensation of Losses Act

[2] Whether it constitutes an objective reason to regard the waterway site as a ditch site that is assessed at a lower price than it is assessed at a lower price in accordance with the original method of appraisal of general land under the circumstance that the wastewater flows into the waterway site without the owner’s intention (negative)

[3] Whether the compensation preference can be taken into account in calculating the fair compensation amount for the land to be expropriated (affirmative with qualification)

[4] The purpose of calculating the amount of compensation under the Land Expropriation Act, in principle, that the time adjustment from the date of public announcement of project approval to the date of adjudication of expropriation is made based on the average price fluctuation rate of the Si/Gun/Gu where the land is subject to the project, and in calculating a reasonable amount of compensation, where the officially announced price of reference land for similar use in neighboring areas of the land is higher than the average price fluctuation rate of the Si/Gun/Gu, whether such circumstance may be immediately

[1] Articles 6-2(2), 12(2), and 6(1) and (2) of the Enforcement Rule of the Special Act on the Compensation of Land for Public Use and Compensation for Loss (hereinafter “Enforcement Rule of the Special Act on the Compensation of Land for Public Use”) stipulate that the waterway site shall be assessed by the method of assessment of general land regarding the waterway site for the purpose of the common use of water by not more than 1/3 of the appraised amount of the neighboring land. As such, the reason why the method of appraisal of the ditch site and the waterway site for the purpose of the common use is different is that there is a difference of value. Therefore, in order to regard the waterway site, which is subject to a assessment by the method of appraisal of general land as the ditch site, there is an objective reason to evaluate it as the ditch site in light of all the circumstances such as the construction process, purpose, surrounding environment

[2] Circumstances that the wastewater flows into the waterway site for the purpose of using the customary water without the owner’s intention are not an objective reason to regard the waterway site, which is to be assessed at a lower price than the original general land assessment method, as the ditch site.

[3] In light of the relevant provisions regarding the calculation of the amount of compensation for land expropriation such as Article 46(2) of the Land Expropriation Act or the Public Notice of Values and Appraisal of Lands, etc., the compensation precedents do not necessarily have to be taken into account in calculating the reasonable amount of compensation for the land to be expropriated, but may be taken into account only when there is a case where a neighboring similar land has been compensated and its price may have an impact on a reasonable assessment.

[4] The purport of Article 46 (2) 1 of the Land Expropriation Act and Article 18-7 of the Enforcement Decree of the same Act, in principle, requires the time adjustment from the date of public announcement of project approval to the date of adjudication of expropriation based on the average price fluctuation rate of land prices of the Si/Gun/Gu where the land for the project belongs, shall be generally included in the price fluctuation in the land for the project and the surrounding areas after the date of public announcement of project approval. Thus, in calculating reasonable compensation, it shall not be allowed to consider and revise the same as other factors on the ground that the officially announced price of reference land for similar use in neighboring areas of the land for the project is higher than the average land price fluctuation rate of the Si/Gun/Gu in question

[1] Article 46 of the Land Expropriation Act, Article 4 of the Special Act on the Compensation for Public Loss, Article 2-10 of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 6(1) and (2), Article 6-2(2), and Article 12(2) of the Enforcement Rule of the Special Act on the Compensation for Public Loss / [2] Article 46 of the Land Expropriation Act, Article 4 of the Special Act on the Compensation for Public Loss, Article 2-10 of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 6(1) and (2), Article 6-2(2), and Article 12(2) of the Enforcement Rule of the Special Act on the Compensation for Public Loss, Article 46(2) of the Land Expropriation Act, Articles 9, 10, and 22 of the Land Expropriation Act, Article 4 of the Special Act on the Compensation for Public Loss, Article 6 of the Enforcement Rule of the Special Act on the Compensation for Public Loss, Article 17 of the Land Expropriation Act

[3] Supreme Court Decision 92Nu6921 delivered on October 27, 1992 (Gong1992, 3308), Supreme Court Decision 92Nu6921 delivered on February 9, 1993 (Gong1993Sang, 991) Supreme Court Decision 92Nu1763 delivered on February 12, 1993 (Gong1993Sang, 1023), Supreme Court Decision 92Nu19521 delivered on June 22, 1993 (Gong193Ha, 2151), Supreme Court Decision 93Nu11524 delivered on January 25, 1994 (Gong1994, 838), Supreme Court Decision 90Du97989 delivered on April 16, 1997 (Gong1994, 197Du196897 delivered on April 196, 199).

Korea Agricultural and Rural Infrastructure Corporation (Attorney Kim Jong-jin, Counsel for the plaintiff-appellant)

The Central Land Tribunal and one other (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Gu22142 delivered on March 3, 1999

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. Judgment on the defendant's appeal

Articles 6-2(2), 12(2), and 6(1) and (2) of the Enforcement Rule of the Public Use of Land for Public Use (hereinafter “Enforcement Rule of the Public Use of Land”) provide that a ditch site shall be evaluated within 1/3 of the appraised amount of neighboring land, and that the waterway site for common use shall be evaluated by the method of appraisal of general land. As such, the reason different from the method of appraisal of the ditch site is that there is a difference in its value. Thus, in order to view the waterway site, which is to be assessed by the method of appraisal of general land, as a ditch site, as an assessment of the lower price, there is an objective reason that can be evaluated as a ditch site in light of all the circumstances, such as the construction process, purpose, surrounding environment, ownership relationship, and utilization status, etc. of the waterway site. However, the circumstance that the waterway site for common use flows without the owner’s intention, may not be considered as an objective reason to assess the waterway site at the price determined by the method of appraisal of general land.

In the same purport, the judgment of the court below is just in holding that each objection that evaluated the land in dispute, which was used as a waterway site, as a ditch site, was unlawful, and there is no violation of the rules of evidence, incomplete deliberation, or misapprehension of the legal principles, as otherwise alleged in the grounds of appeal. Therefore, the defendant's grounds of appeal cannot be accepted.

2. Judgment on the Plaintiff’s appeal

In light of the relevant provisions on the calculation of compensation amount in the land expropriation, such as Article 46(2) of the Land Expropriation Act or Article 18-7 of the Enforcement Decree of the Land Expropriation Act, one of the factors for calculating the compensation amount in the land expropriation, the compensation example does not necessarily have to be taken into account in calculating the reasonable compensation amount for the land to be expropriated. However, it may be taken into account only when there is a case where nearby similar land was compensated and its price is recognized to have an impact on a reasonable assessment (see Supreme Court Decision 92Nu1763, Feb. 12, 1993). Meanwhile, in principle, the method of calculating compensation amount under Article 46(2)1 of the Land Expropriation Act and Article 18-7 of the Enforcement Decree of the same Act, the purport of having the land subject to the project be modified from the date of the public announcement of the project approval to the date of the adjudication of expropriation under the average price fluctuation rate of the land to the date of public announcement of the project approval, and in light of the fact that the price fluctuation of the land to be excluded from this.

In the same purport, although the court below's determination of each objection that did not present the basis for the calculation of the revised rate is unlawful, it is just to recognize the correction of other factors by viewing the appraised value excluded from the change in the price of reference land for similar use in the vicinity of the land of this case as a legitimate compensation amount, and there is no error of law such as misunderstanding of legal principles as argued in the Grounds for Appeal. Therefore, the plaintiff's ground for appeal cannot be accepted.

3. Therefore, all appeals shall be dismissed, and the costs of appeal shall be borne, and this decision is delivered with the assent of all Justices.

Justices Zwon (Presiding Justice)