Plaintiff 1 and one other (Law Firm Cheongam, Attorneys Cho Il-i et al., Counsel for the plaintiff-appellant)

Korea

November 25, 2010

Daejeon District Court Decision 2010Guhap568 Decided September 1, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant’s refusal to file an application for adjudication with the Central Land Tribunal on January 6, 2010 regarding the obstacles described in serial numbers 7 through 10 on the attached list list list owned by the Plaintiffs on January 6, 2010. It is confirmed that the Defendant’s failure to file an application for adjudication with the Central Land Tribunal on the obstacles described in serial numbers 17 through 19 on the attached list list list owned by the Plaintiff

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as follows, except where the defendant added the following two judgments as to the matters asserted in the trial court, and therefore it is identical to the reasoning of the judgment of the court of first instance. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure

2. Additional matters to be determined;

A. The defendant's assertion

(1) The right to file an application for adjudication can be said to be the right recognized by the landowner in an anticipated consultation procedure between the landowner and the project operator. Article 30(1) of the Public Works Act provides that “when an agreement is not reached,” the right to file an application for adjudication shall be deemed to be the right recognized by the landowner.” It is reasonable to interpret that the consultation procedure was conducted,

(2) However, the defendant did not consult about the calculation of compensation amount and compensation since the obstacles in the serial number 7 to 10 of the annexed list demanding the plaintiffs to compensate are illegal buildings, and they are not objects of compensation.

(3) Therefore, in the event that a project operator and a landowner fail to proceed with a consultation itself as to the subject of compensation, the project operator is not obliged to apply for a ruling of expropriation to the competent Land Tribunal.

B. Determination

Article 30(1) of the Public Works Act provides that “When an agreement is not reached after a public announcement of project approval, any landowner and person concerned may file a written application for adjudication with a project operator under the conditions as prescribed by the Presidential Decree.” Here, “when an agreement is not reached” refers to cases where a project operator, etc. under the consultation procedure under Article 26 of the Public Works Act with a landowner, etc. but the consultation procedure was not reached with respect to such amount of compensation, etc. although the landowner, etc. demand compensation, as well as cases where the project operator excludes the object of compensation, considering that such consultation procedure is not an object of compensation even though the landowner, etc. demand compensation.

According to the purport of Articles 28, 30, and 83 through 85 of the Public Works Act, a landowner, etc. can not claim the payment of compensation to a project operator by means of a direct lawsuit without going through a judgment. If such interpretation is not made, the project operator is deemed not eligible for compensation, and the landowner, etc. cannot claim the payment of compensation to the project operator by means of a lawsuit if the consultation procedure under Article 26 of the Public Works Act is not followed, because the right of the landowner, etc. to request compensation is not recognized. Accordingly, it goes against the institutional purpose of granting the landowner, etc., under the Public Works Act, to protect the interests of the landowners, etc., who have prompt confirmation of legal relations surrounding expropriation.

Therefore, even in cases where a project operator is excluded from the object of compensation due to dispute between a landowner, etc., if a landowner, etc. requests an application for adjudication, he/she shall file an application for adjudication with the competent Land Tribunal to deal with the business related to the compensation according to the result of the adjudication, and it shall not be deemed that the project operator himself/herself cannot reject the application for adjudication based on his/her own decision that it is not subject

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Shin Young-young (Presiding Judge)