(a) Where the implementer of a land readjustment project fails to designate replotting for private land, such as private roads, and does not pay liquidation money, whether the tort is established (affirmative) and the scope of compensation for such damage;

(b) Date commencing the extinctive prescription of the right to claim damages in the preceding paragraph;

A. The land readjustment project executor fails to designate the land substitution for private land such as private roads pursuant to the latter part of Article 53 (2) of the former Land Readjustment Project Act (Act No. 1822 of Aug. 3, 1966), but it is not inevitable under the above legal provisions, and it is not possible for the land readjustment project executor to pay the liquidation money and to lose ownership by completing the land rearrangement project without paying the liquidation money and making a final public announcement of the land substitution disposition, thereby constituting tort against the land owner. Therefore, the land readjustment project executor is liable to compensate for damages equivalent

B. Damage caused by the execution of an illegal land readjustment project, such as the above paragraph (1), shall be deemed to have occurred when the ownership of the previous land is extinguished by the public notice of a land substitution disposition. Therefore, the right to claim damages on this ground shall expire by the extinctive prescription under Article 766 of the Civil Act

A. Article 750 of the Civil Act; Article 52 of the Land Readjustment Projects Act; Article 53(2) of the former Land Readjustment Projects Act (Act No. 1822, Aug. 3, 1966); Articles 766 and 166 of the Civil Act; Article 62(1) of the Land Readjustment Projects Act

A. Supreme Court en banc Decision 74Da1548 Decided April 22, 1975 (Gong1975,8414) (Gong1990,1450) Decided June 12, 1990

Unlimited partnerships Gyeongnam City

Attorney Kim Tae-tae, Counsel for the defendant-appellant

Busan High Court Decision 90Na2062 delivered on October 24, 1990

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

As to the Grounds of Appeal

In the case of Article 53 (2) of the Land Consolidation and Rearrangement Project Act promulgated by Act No. 1822 of Aug. 3, 1966, with respect to the land which is unusable due to the abolition or alteration of all or part of the public facilities belonging to the ownership of the State or local governments due to the execution of the Land Rearrangement and Rearrangement Project, the land substitution shall not be determined in the land substitution plan, and it shall be subject to the land substitution for other land. The same shall also apply in the case where private roads or other land actually offered for public use, and a substitute facility is installed due to the execution of the land rearrangement and rearrangement project

In this case, the court below's decision that the land of this case owned by the plaintiff constitutes the land under the latter part of Article 53 (2) of the above Act and that the defendant's failure to determine the replotting was forced under the above legal provisions, but it is not reasonable and wrong that the court below decided that the plaintiff's loss of the plaintiff's ownership to the land of this case constitutes a tort against the plaintiff and therefore, the defendant is liable for damages equivalent to the liquidation money for the same real estate suffered by the plaintiff.

In addition, in such a case, Article 766(2) of the Civil Act provides that a claim for damages due to a tort shall be extinguished by the prescription ten years after the date of a tort. According to Article 61(1) of the Land Readjustment and Rearrangement Projects Act, in a case where a land substitution disposition is publicly announced, the land substitution stipulated in the land substitution plan shall be deemed as the previous land from the day following the day when the public notice of the land substitution disposition is given to the day when the public notice of the land substitution disposition is completed. Therefore, if the plaintiff's damages due to the execution of the land substitution plan as stated by the court below is deemed to have occurred when the same day when the ownership of the plaintiff's previous land is extinguished by the public notice of the land substitution disposition as of July 4, 1973, the plaintiff's claim for damages due to the defendant's unlawful land substitution plan, which is the day after July 4, 1973, which is the date of the public notice of the land substitution disposition as to the real estate in this case, and it cannot be legally established by the plaintiff's claim for damages.

In light of the above legal principles, the court below determined that the extinctive prescription under Article 766(2) of the Civil Act takes place from July 4, 1973, which is the date of the public announcement of the above disposition of replotting, and it cannot be said that this point is erroneous, but such unlawful determination does not affect the result of the original judgment, and thus, the court below's judgment that criticizes the part that the plaintiff's claim for damages was extinguished by the expiration of the extinctive prescription

The court below asserted that the defendant's defense of extinctive prescription is a violation of Article 138 of the Civil Procedure Act, and that the court below's acceptance of such defense is a violation of Article 138 of the Civil Procedure Act, which permits the acquisition of private property without any compensation, and thus violates the Constitution. However, in light of the situation of the lawsuit in this case, the argument of violation of Article 138 of the Civil Procedure Act is without merit. The argument of violation of the Constitution is not justified because the plaintiff's defense of extinctive prescription has not been asserted by the plaintiff due to his fault. Thus, this cannot be justified.

Therefore, all arguments are without merit, and this appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)