The case reversing the judgment of the court below on the ground that there was an error in the incomplete hearing due to the non-exercise of right to ask for a tiny as to the appropriate claim for compensation under Article 47

The case reversing the judgment of the court below on the ground that there was an error in the incomplete hearing due to the non-exercise of right to ask for a tiny as to the appropriate compensation claim under Article 47 of the

Article 47 of the Land Expropriation Act

Plaintiff 1 et al., Counsel for the defendant-appellant Kim Jong-sik, Counsel for the plaintiff-appellant

The Central Land Tribunal and one other Defendants (Attorney Ansan-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 90Gu20697 delivered on February 17, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The court below acknowledged the facts as stated in its holding against the plaintiffs' assertion that the act of selecting the construction site of the Defendant Korea Electric Power Corporation (excluding the act of selecting the instant land at the candidate site) and the subsequent decision of land expropriation by the Gyeonggi-do Regional Land Expropriation Committee, which affected the procedure, abuse its discretionary power, and that the plaintiffs' property loss to be infringed due to the act is much much larger than the public interest gained by the construction of the substation, thereby violating the principle of equity. The court below rejected the above plaintiffs' assertion on the ground that the Defendant Corporation had gone through a legitimate procedure in selecting the instant land as the new substation site, and it cannot be deemed that it abused its discretionary power or violated the principle of equity.

The reason that the approval of the project is illegal or unjust in the expropriation procedure should be discussed at the stage of the project approval, because the electric source developer is considered to have obtained the approval of the project under the Land Expropriation Act (Article 6 (1) 2 of the Act on Special Cases Concerning Electric Source Development).

According to the facts duly established by the court below, since the project implementation plan for electric power resource development business (154 KV Power Station Construction Business) of the land in this case was approved and publicly announced on August 11, 198 under Article 88-31 of the same Ordinance, the above approval approval plan public notice of the project implementation plan is deemed project approval under Article 14 of the Land Expropriation Act. Thus, the plaintiffs should dispute at the stage of the approval public notice of the above project implementation plan (project approval) on the ground that there is an illegal or unjust defect in the claim at the stage of the above public notice of approval (project approval). The claim for cancellation of the adjudication on the ground that the above project approval

Although it is not appropriate for the court below to decide on the merits as to the illegality of the judgment of this case, it does not affect the conclusion of the judgment, there is no reason to argue that the violation of the rules of evidence, abuse of discretionary power, and the principle of equity, such as the theory of lawsuit.

2. The judgment of the court below as to the point where the theory of lawsuit points out (the point where the land in this case is a miscellaneous land and forest, the point where the land in this case is appraised as the land in development restriction zones, and the case of sale and purchase of the land in this case is considered as transaction cases, etc.) is justified in light of the evidence relation as stated by the court below, and there is no error of law that misleads the facts against the rules of evidence as alleged in the lawsuit. All arguments are not just to criticize the determination of the evidence and the recognition of facts belonging to the whole jurisdiction of the court below.

3. According to the reasoning of the judgment below, the court below held that since the price of the remaining land owned by the plaintiffs, other than the land of this case, which was not expropriated due to the above transformation, has remarkably fallen due to construction of the above transformation station, the above remaining land is not a land subject to the land expropriation of this case, and thus, the price decline of the remaining land cannot be considered in assessing the legitimate compensation amount of the land of this case. The loss of such remaining land must be claimed for compensation separate from the expropriation of the land of this case under Articles 47 and 48 of the Land Expropriation Act. Thus, the plaintiffs' above assertion on the premise that the Central Land Expropriation Committee decided the compensation amount which does not reach the legitimate compensation amount in the decision of this case is without merit.

However, according to the records of this case, the land remaining after being expropriated as a substation site in this case is obvious that the land price will also decline due to the installation of dangerous facilities such as a substation on the land in this case. Since there is no evaluation on this, there is no evaluation on the appraisal report, there is an adequate compensation measure as to the above matters pursuant to Article 47 of the Land Expropriation Act. The plaintiff's such assertion appears to the purport of seeking compensation for losses, since the land price of the remaining land is reduced due to the expropriation of part of a group of land owned by the plaintiff, the court below should have deliberated and decided on the legitimacy thereof.

The court below erred in the incomplete hearing due to the non-exercise of the right to ask for a name shall be deemed to have been committed. Therefore, the issue of this point is with merit.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sik (Presiding Justice)