2018Da256313 Compensation for damages

Korea Land and Housing Corporation

Attorney Choi Sung-soo, Counsel for the defendant-appellant

Defendant 1 and one other

Attorney Han-soo et al., Counsel for defendant-appellant

Attorney Kim Tae-young et al.

Seoul High Court Decision 2017Na205146 Decided June 29, 2018

may 7, 2021

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Factual basis

According to the reasoning of the lower judgment, the following facts are revealed.

A. On December 27, 2010, the Plaintiff registered the ownership transfer on the ground that the project implementer for the housing site development project for the Incheon Inspection District had obtained a consultation on the land for public use with respect to 2,764 square meters in Seo-gu, Incheon (hereinafter omitted) (hereinafter “instant land”).

B. On December 7, 2012, the Plaintiff concluded a compensation agreement with Defendant 1 on the following contents: (a) Defendant 1 removed and relocated obstacles necessary for the waste disposal business, including the building of the prefabricated Team owned by Defendant 1 and the recycling sorting machine; and (b) the Plaintiff paid compensation.

Of the amount of compensation 139,344,930 won, the amount of reserve shall be KRW 125,410,440, the amount of reserve shall be KRW 13,934,490 (Article 2), Defendant 1 shall be completely removed or relocated until May 31, 2013 (Article 5(1)), and in the case of reserve amount among the compensation under Article 2, Defendant 1 shall pay when the removal or transfer of obstacles is completed within the period prescribed in Article 5 (Article 5(3)).

On December 7, 2012, Defendant 1 drafted a written consent to implement a compensation agreement to the Plaintiff. Thereafter, the Plaintiff paid 139,344,930 won of compensation to Defendant 1.

C. The Plaintiff filed an application for adjudication with the Central Land Expropriation Committee to transfer articles that did not reach an agreement with the owner, etc. among articles to be incorporated in the project. The Central Land Expropriation Committee, on December 18, 2014, determined the compensation, etc. for the articles pursuant to Article 75(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) and decided on February 10, 2015 to compensate Defendant 2, who is the owner of the obstacles in the instant land, for the total amount of KRW 41,796,600. The details of the compensation include 12 items in total, and 40,300,000 in total, and 5-12 [the first product and raw materials] items in the case of products and raw materials] are all 1 won in the case of the compensation claims. The Plaintiff deposited the compensation claims pursuant to Article 75(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”).

D. The instant land contains industrial garbage, including waste synthetic resin (hereinafter “the instant waste”), and the cost of treating the instant waste at a waste disposal facility is KRW 336,967,802.

2. Claims for damages under the Wastes Control Act, etc.;

A. The lower court determined as follows.

The Plaintiff asserts that Defendant 1 violated the obligation to dispose of wastes pursuant to Article 3-2(4) of the Wastes Control Act, Article 10-3(1) of the Soil Environment Conservation Act, and Article 10-4(1)1 and 2 of the Soil Environment Conservation Act. However, it is difficult to accept the Plaintiff’s assertion that the instant waste constitutes soil contaminants and the obstacles owned by Defendant 1 constitute the facilities subject to the control of soil contamination.

B. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the Wastes Control Act, etc

3. The remaining grounds of appeal against Defendant 1

A. The lower court determined as follows.

Defendant 1, who leased the instant land and installed obstacles, from August 2005 to June 2006, had been employed as the representative director of ○○ Resources Management Co., Ltd., which collects and sells recyclable products. Defendant 2 transferred the instant land from Defendant 1 to its collection and sales business from October 30, 2006.

Defendant 1 agreed with Defendant 2 on January 18, 2013 to terminate the sublease contract with respect to the instant land. On December 9, 2013, Defendant 1 sold obstacles to the Nonparty at KRW 25,000,000. There is no evidence suggesting that there was certain waste in the instant land at the time when Defendant 1 sold obstacles to the Nonparty. According to Defendant 2’s assertion, even until November 2014, Defendant 1 transferred the parts of the instant land, the possibility that the volume of wastes increased rapidly after Defendant 1 transferred the parts of the instant land.

The plaintiff paid the compensation set forth in the compensation agreement to the defendant 1, and deposited the compensation for losses through separate rulings on the obstacles of the defendant 2.

In light of these facts, Defendant 1’s performance of a sub-lease agreement with the Plaintiff by terminating the sub-lease agreement and transferring obstacles to the Nonparty, and it is difficult to recognize that the wastes alleged by the Plaintiff occurred on the instant land at the time of transfer of obstacles, and thus, Defendant 1 cannot be deemed to have violated the compensation agreement. Even if there were some wastes around the time of transfer of obstacles, the amount cannot be determined, and Defendant 1 should be deemed to have been recognized as having fulfilled the obligation stipulated in the compensation agreement by the Plaintiff’s full payment of compensation.

B. Examining the reasoning of the lower judgment in light of the record, the lower judgment did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. The remaining grounds of appeal against Defendant 2

A. Article 75(1) of the Land Compensation Act provides that the principle that a building, etc. which is an obstacle shall be compensated at the cost of relocation shall be compensated in cases falling under any of the following subparagraphs. In cases where the relocation of a building, etc. is difficult under subparagraph 1 or the relocation of a building, etc. makes it impossible to use the building, etc. for its original purpose due to such relocation, the relocation cost of the building, etc. exceeds the price of the building, under subparagraph 2, subparagraph 3 provides that the project implementer shall acquire the building

Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Enforcement Rule of the Land Compensation Act") according to delegation of Article 75(6) of the Land Compensation Act shall be removed at the expense of a project operator for buildings, structures, etc. compensated at the price of goods pursuant to the proviso to Article 75(1) of the Land Compensation Act, but if the owner removes the relevant building for the purpose of using or disposing of its constituent parts, the owner shall bear the relevant expenses.

In light of the purport of compensation for expropriation of obstacles under the Land Compensation Act and the principle of reasonable compensation or reasonable price compensation, if a project operator compensates for obstacles that impede the implementation of a project at the price of objects that do not actually incur pursuant to the proviso to Article 75(1)2 of the Land Compensation Act, the project operator cannot be deemed to acquire ownership of the relevant objects solely on the compensation unless he/she takes the procedure of expropriation different from subparagraph 3, unless he/she acquires the relevant objects. In addition, the project operator cannot request the owner of obstacles to remove obstacles at his/her own expense under the proviso to Article 33(4) of the Enforcement Rule of the Land Compensation Act, barring any special circumstance, such as where the owner of obstacles wishes to remove them at his/her own expense (see Supreme Court Decision 2010Da94960, Apr. 13, 2012).

B. On the grounds delineated below, the lower court determined that the Plaintiff, a project operator, could remove wastes directly at his own expense and could not request Defendant 2 to transfer waste, or claim damages equivalent to the disposal cost on the ground of nonperformance.

The details of compensation paid by the Central Land Tribunal to Defendant 2 include “products and raw materials (recyclinged materials)” and the amount of compensation is one won. This can be seen as determining compensation for items below 40,300,000 won in a lump sum, on the premise that the transfer cost of wastes constitutes cases where waste exceeds the price of the goods subject to compensation.

C. The lower judgment is justifiable in light of the foregoing legal doctrine, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to the scope

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won

Justices Kim Jae-hyung

Justices Min You-sook

Justices Noh Tae-ok