2017Du30832 The increased amount of compensation for confinement, etc.

A

B Stock Company

Seoul High Court Decision 2016Nu51391 Decided December 20, 2016

April 7, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

After finding facts as stated in its reasoning, the lower court determined that the Defendant succeeded to the rights and obligations of the project implementer, including the obligation to file an application for adjudication on the instant land, from F Co., Ltd. (hereinafter referred to as “F”), the former business commencement of the instant project. In light of the relevant statutes and the records, the lower court’s determination is justifiable, and it did not err by misapprehending the legal doctrine on the succession to the status of the project implementer

2. Regarding ground of appeal No. 2

A. According to Article 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), when consultation has not been concluded after a public announcement of project approval, landowners and persons concerned (hereinafter “land owners, etc.”) may request in writing a project operator to file an application for adjudication (Paragraph 1), and the project operator shall file an application for adjudication with the competent Land Tribunal within 60 days from the date the application is filed (Paragraph 2), and if the project operator files an application for adjudication after the lapse of the period, the amount calculated by applying the statutory interest rate under Article 3 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “refluent additional charges”) for the delayed period (hereinafter “refluent additional charges”) shall be paid in addition to the compensation adjudicated by the competent Land Tribunal (hereinafter “refluent compensation”).

Meanwhile, if a project operator fails to pay or deposit a compensation for adjudication by the commencement date of expropriation, the adjudication shall lose its effect (Article 42(1) of the Land Compensation Act), and the project operator’s application for adjudication shall also lose its effect (see, e.g., Supreme Court Decision 84Nu158, Mar. 10, 1987). A project operator shall apply again for adjudication. If a landowner, etc. has already filed a claim for adjudication before the adjudication becomes effective, the application shall be made within 60 days from the effective date of the adjudication, and if the application for adjudication has already been filed after the expiration of the period, additional dues shall be paid for the delayed period. Supreme Court Decision 2012Du1287, Feb. 26, 2015. Where the adjudication becomes invalidated, in principle, it is reasonable to deem that an application for adjudication falls within the period of delay and additional dues, etc., which should not be deemed to fall within the period of compensation for losses incurred by the landowner, etc. (see, e.g., Article 42(3) of the Land Compensation Act)., additional dues, etc.

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

1) On February 11, 2010, the Plaintiff filed an application for adjudication of expropriation with respect to land owned by the Plaintiff located within the instant project zone against F, who was the previous project operator of the instant project. Accordingly, F, upon receipt of an application for adjudication, filed a ruling of expropriation on August 23, 2010 (hereinafter referred to as “the first adjudication of expropriation”). However, the first adjudication of expropriation was invalidated as the first adjudication of expropriation failed to pay or deposit the adjudication compensation by September 23, 2010 (hereinafter referred to as “the first adjudication of expropriation”).

2) After July 28, 2011, the operator of the instant project was changed to the Defendant pursuant to the development plan for C General Industrial Complex and the public notice of amendment of the implementation plan (the Gyeonggi-do public notice). The Defendant sent to the landowner, etc., including the Plaintiff, a public notice requesting the recommendation of the appraisal business entity, and the non-Subrogation submitted the written consent of recommendation to the Defendant around August 5, 201. On August 9, 2011, the Defendant responded that the said written consent satisfies the requirements stipulated in the relevant laws and regulations. Then, on September 19, 2011, the Defendant concluded a compensation business agreement with the “Csan Industrial Complex Emergency Countermeasure Committee (hereinafter referred to as the “non-Subrogation”). According to the contents of the aforementioned compensation business agreement, according to the contents of the said compensation business agreement, it is expected that the representative of residents, Pyeongtaek Urban Corporation and the Defendant selected one appraiser and undergo the appraisal procedure.

3) The Defendant submitted an appraisal report to an appraisal corporation in the location of three places pursuant to the above compensation business agreement, and received the appraisal report from November 16, 201 to December 16, 201, and agreed on compensation with landowners, including the Plaintiff, etc.; however, the Defendant again filed an application for adjudication of expropriation on January 30, 2012, which did not enter into such agreement. Examining the foregoing facts in light of the legal principles as seen earlier, the first adjudication of expropriation becomes null and void because the F, upon the request of the Plaintiff, applied for adjudication of expropriation at the request of the Plaintiff, applied for adjudication of expropriation, but did not pay or deposit the adjudication compensation by the commencement date of the expropriation prescribed in the said adjudication, the Defendant succeeded to the rights and duties as the project operator in the instant case, in principle, did not need to undergo the procedure of consultation with the landowners, etc. In view of the fact that the new project operator requested the landowners, etc. to recommend the land owners, etc., to conclude the instant compensation business agreement with the 10th period after the conclusion of the agreement or late expropriation.

Therefore, the lower court should further examine the specific details and contents of the agreement, the subsequent implementation process, and the details of the Plaintiff’s participation in the agreement between the Defendant and the Defendant, and further examine whether it can be deemed that an agreement was reached between the Plaintiff and the Defendant to undergo re-consultations based on the said compensatory work agreement, etc.

The lower court should have determined the scope of additional charges for delay to be borne by the Defendant. Nevertheless, without further determination on these circumstances, the lower court determined that the first expropriation ruling was invalidated and the Defendant had incurred additional charges for delay from December 15, 201, as requested by the Plaintiff, until December 15, 201, as before the Defendant again filed an application for a new expropriation ruling. In so doing, the lower court erred by misapprehending the legal doctrine on additional charges for delay under Article 30(3) of the Land Compensation Act, which led to failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

3. Therefore, 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.

The presiding judge shall keep the record of the Justice

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jae-in