[1] In a case where a project implementer compensates for the price of an article that does not meet the relocation expenses pursuant to the proviso of Article 75(1)2 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects for the obstacles that interfere with the project implementation (negative), and whether the owner of the obstacles is in a position to accept the removal of the obstacles and the loss of the value of the article that occurs in the process (affirmative in principle)

[2] In a case where a local government-invested public corporation Gap, who is a housing site development business operator, deposited compensation for aggregate from the Central Land Expropriation Committee under the proviso of Article 75 (1) 2 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor for Aggregates as compensation for losses, and agreed with the owner of aggregate and the owner of aggregate to transfer aggregate to a temporary place for the construction work, and all aggregates have been destroyed, the case holding that the judgment below which held that Gap is liable for damages

[1] In light of Article 75(1)1, 2, 3, and (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “the Act”), 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 “Enforcement Rule”), and the purport of compensation for obstacles under the Act and the principle of just compensation or reasonable compensation, where the project implementer compensates the project implementer for the price of articles that do not actually incur expenses prior to the project implementation pursuant to Article 75(1)2 of the Act, the project implementer shall be deemed to have obtained the ownership of the articles only through compensation unless the project implementer goes through the expropriation procedure unlike subparagraph 3, and the project implementer shall not be deemed to have interfere with the project implementation of the project at his/her own expense and at his/her own expense unless he/she directly interferes with the third party’s disposal of such articles.

[2] In a case where a local government-invested public corporation Gap, who is a housing site development project, filed an application for adjudication to expropriate aggregate at the Central Land Expropriation Committee to the effect that the compensation for aggregate should be made pursuant to Article 75(1)2 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “Act”), and deposited compensation for losses on the ground that it is unclear who the owner of aggregate is Eul corporation and Byung, and then, the company Eul and Eul agreed to temporarily relocate aggregate at the cost of the construction, and discard or destroy aggregate at the same time on the ground that the transfer cost of aggregate exceeds the acquisition price of aggregate, and the Central Land Expropriation Committee has the authority and burden to remove aggregate at its own expense due to the deposit of compensation for aggregate and the removal of aggregate from the duty to remove aggregate in accordance with the above Act can not be seen as an infringement of the duty to remove aggregate at the same time if the removal of aggregate is in violation of the duty to remove it.

[1] Article 75(1)1, 2, 3, and (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 75(1)1, 2, 3, and (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007); Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Articles 390 and 750 of the Civil Act

Hank Industrial Co., Ltd. (Law Firm Sejong, Attorneys Lee Jong-ho et al., Counsel for the plaintiff-appellant)

E. E.S. (Attorney Kim Chang-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na105750 decided October 22, 2010

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, since the Defendant, who is the owner of the housing site development project, filed an application for the adjudication with the Central Land Expropriation Committee to the effect that there would be no agreement on the owner of the aggregate including the instant case, and the Central Land Expropriation Committee requested the appraisal to calculate compensation for the above obstacles, etc., the Plaintiff’s request for the appraisal of the aggregate from the two sites to acquire the cost of relocation is below the acquisition of the aggregate, so it is reasonable to dismiss the Plaintiff’s objection as soon as the Nonparty did not have the right to raise an objection to the said aggregate as compensation under Article 75(1)2 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665, Oct. 17, 207; hereinafter referred to as the “Act”) to the effect that it is reasonable to assess the Plaintiff’s 923,964,00 won prior to the acquisition of the aggregate as compensation for damages. Accordingly, the Central Land Expropriation Committee, on July 13, 2005.

In other words, in light of the fact that the Central Land Expropriation Committee had the defendant move the aggregate of this case in the adjudication of this case and had the defendant pay the amount of compensation for losses and dismissed the defendant's objection, the compensation of this case shall be deemed compensation for the transfer cost of the aggregate of this case. Even if the amount of the acquisition price of the aggregate was deposited as the compensation amount for losses, the defendant cannot obtain the ownership or disposal authority of the aggregate of this case, so long as the acquisition price of the aggregate of this case was not done without taking the procedure for expropriation of ownership, the defendant's act of arbitrarily destroying the aggregate of this case, which is recognized as the plaintiff's ownership, violated the duty of care

2. However, we cannot accept the judgment of the court below for the following reasons.

Article 75(1) of the Act provides for the principle that a building, etc., which is an obstacle shall be compensated at the cost of relocation, while a building falling under any of the following subparagraphs shall be compensated at the price of the relevant object in the proviso to Article 75(1) of the Act. Where the relocation of a building, etc. is difficult due to subparagraph 1 or relocation thereof makes it impossible to use the building, etc. for its original purpose, the relocation cost of the building, etc. exceeds the price of the building, subparagraph 2, subparagraph 3, for the purpose of direct use for public works. In addition, Articles 33(4) and 36(1) of the Enforcement Rule upon delegation under Article 75(5) of the Act provide that a building, structure, etc., which has been compensated at the price of the building, etc., shall be removed at the cost of the project operator, and if the owner removes the building, etc. for the purpose of using or disposing of its constituent parts, the project operator shall bear the relevant expenses:

In light of the purport of compensation for expropriation of obstacles under the law and the principle of compensation for reasonable prices, in cases where a project operator compensates for obstacles that are not actually incurred in the implementation of a project pursuant to the proviso of Article 75 (1) 2 of the Act with respect to the amount of compensation for such obstacles, unless a project operator takes the procedure of expropriation different from subparagraph 3, it is difficult to view that the project operator acquires ownership of such obstacles only with compensation unless he/she takes the procedure of expropriation. However, on the other hand, the project operator cannot demand the owner of the obstacles to remove the obstacles at his/her own expense and remove them directly at his/her own expense, and in such cases, the project operator can remove them directly at his/her own expense unless there are special circumstances, such as the owner of the obstacles and the owner of the obstacles have to remove them at his/her own expense pursuant to the proviso of Article 33 (4) of the above Enforcement Rule within a reasonable time that does not interfere with the implementation of the project.

According to the reasoning of the judgment below and the records, the Central Land Tribunal, in the judgment of this case, determined compensation at the price of the aggregate of this case pursuant to the proviso of Article 75 (1) 2 of the Act on the ground that the transfer cost of the aggregate of this case exceeds the acquisition price, and the judgment becomes final and conclusive as it is. Thus, in light of the above legal principles, the defendant, who is a project operator, at the same time, has the authority and burden to remove the aggregate of this case, which is an obstacle within the project implementation district by depositing compensation in accordance with the above judgment, at the same time, to remove the aggregate of this case, which is an obstacle within the project implementation district, and the plaintiff also has the status to remove the obstacles of the defendant's removal instead of avoiding the transfer obligation, and the agreement of this case between the plaintiff and the non-party to transfer the aggregate of this case to a temporary place is not more meaningful than confirming the legal status of both parties in accordance with the above legal principles. Accordingly, even if the defendant removed the aggregate of this case after the agreement of this case so that it does not interfere with the execution of the project, it cannot be deemed as an unlawful act of the plaintiff's loss.

Nevertheless, the court below paid attention to the fact that the ownership of the aggregate of this case remains in the plaintiff, but recognized the plaintiff's default and liability for damages with respect to the loss of aggregate of this case caused by the defendant's act of removing obstacles. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the effect of compensation for obstacles under the law, which affected the judgment

3. Therefore, without examining all the Defendant’s remaining grounds of appeal and Plaintiff’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)