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(영문) 서울행법 1999. 8. 25. 선고 99구2436 판결 : 확정
[토지수용이의재결처분취소][하집1999-2, 485]
Main Issues

[1] Method of determining the redemption price under the Public Loss Compensation Act

[2] The case holding that the price at the time of repurchase of the land at the time of repurchase cannot be seen as significantly changing compared to the time of the acquisition of consultation, on the ground that it is difficult to deem that the price at the time of repurchase of the land at the time of repurchase was increased due to the execution of a public project, on the ground that it is difficult to deem that the price at the time of repurchase of the land at the time of repurchase was considerably changed compared to the time of the acquisition of consultation, in a case where the land was left neglected after consultation and the present situation was the river, and only the compensation was unreasonably low in appraisal

Summary of Judgment

[1] In full view of the provisions of Article 9(1) and (3) of the Special Act on the Compensation for Public Loss and Compensation for Losses, and Article 7(1) of the Enforcement Decree of the same Act, if the compensation paid at the time of exercising the redemptive right is less than or equal to the amount calculated by multiplying the compensation paid by the fluctuation rate of neighboring similar land unrelated to the relevant business until the time of repurchase by the rate of land price in neighboring similar land unrelated to the relevant business at the time of repurchase, the amount equivalent to the compensation paid shall be the repurchase price. In excess of this, the amount obtained by deducting the amount

[2] The case holding that the price at the time of repurchase of the land at the time of repurchase cannot be seen as significantly changing compared to the time of the acquisition of consultation, on the ground that it is difficult to deem that there was an increase in value due to the execution of public project, on the ground that the price at the time of repurchase of the land at the time of repurchase would not be deemed to have exceeded the amount calculated by multiplying the compensation by the fluctuation rate of neighboring similar land, in case where the land was duly assessed before the acquisition of the land at the time of the consultation, and the compensation was paid by the appraisal of the river, even though it was neglected

[Reference Provisions]

[1] Article 9(1) and (3) of the Special Act on the Compensation for Public Loss, Article 7(1) of the Enforcement Decree of the Special Act on the Compensation for Public Loss / [2] Article 9(1) and (3) of the Special Act on the Compensation for Public Loss, Article 7(1)

Reference Cases

[1] Supreme Court Decision 93Nu17225 delivered on May 24, 1994 (Gong1994Ha, 1843)

Plaintiff

Nownings

Defendant

Central Land Tribunal 1

Conclusion of Pleadings

July 28, 1999

Text

1. On December 15, 1998, the part of the decision that the Central Land Expropriation Committee set the repurchase amount exceeding KRW 491,620 among the adjudications on the amount of redemption of the land stated in the attached Table against the plaintiff is revoked.

2. It is confirmed between the Plaintiff and Defendant Republic of Korea that the amount of redemption on the land listed in the separate sheet is KRW 491,620.

3. The costs of lawsuit shall be borne by the defendants.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the ruling on the objection of this case;

The following facts may be acknowledged in light of the whole purport of the pleadings in each statement of Gap 1, 3, 16, 7-1, 2, 4-1, 2-2, and 4-2, and there is no counter-proof.

A. In order to implement the river project on June 8, 198, the Defendant, under the Act on Special Cases concerning the Compensation for Public Loss (hereinafter referred to as the “Public Special Cases Act”), acquired through consultation the land size of 523 square meters (the land was divided into each land listed in the separate sheet on September 29, 1997) from the Non-Party, the Plaintiff’s father-ju, under the Act on Special Cases concerning the Compensation for Loss of Works and Compensation for Residents (hereinafter referred to as the “Public Special Cases Act”).

B. However, even though the above land was not the land incorporated into the above project district, Defendant Republic of Korea did not acquire the remainder of the land incorporated into the above project district on the grounds of a clerical error in the cadastral map, and Defendant Republic of Korea believed that the above land was the land previously used as a river in the cadastral map, even though it was the land previously used, and the above land was also used as a river in the cadastral map, and the neighboring land was paid a monetary amount of KRW 143,820 (275 x 523 m2,50 m20 x 10 m275 m2,50 m2,520 (hereinafter the same shall apply) with the compensation, applying the land category as a unit price for the land

C. After that, Defendant Republic of Korea neglected the above land for several years, but did not use it for the above business purposes, such as leasing it to Nonparty Kim Ho-dong. On June 5, 1998, the Plaintiff, the heir of the above old-gu, deposited the compensation paid to the above old-gu owner, and expressed his intention to repurchase the land in the attached Table (hereinafter “the land in this case”).

D. Defendant Republic of Korea applied for a ruling on repurchase amount to Defendant Central Land Expropriation (hereinafter “Defendant Central Land Expropriation”) under Article 9(3) of the Special Act on the ground that the price of the instant land has been significantly changed compared with that at the time of the acquisition through consultation. Accordingly, Defendant Central Land Expropriation Corporation requested an appraisal corporation and a dialogue appraisal corporation to appraise the amount of repurchase of the instant land. The said appraisal institution shall calculate the amount of 6,23,700 won by adding the price at the time of exercising the right to repurchase of the instant land to 6,223,70 won on the basis that the land category and use of the instant land are the comparison standard. The said appraisal institution calculated the rate of 3.2036 at the time of the said repurchase from the time of the above consultation acquisition through the above 57-5 land, which is an adjacent similar land unrelated to the instant project, to the said repurchase. Accordingly, on October 20, 1998, Defendant Central Land Expropriation was calculated by deducting the amount of repurchase amount of the instant land from the appraisal value at the time of the instant land 30.2636.

E. The Plaintiff dissatisfied with this and filed an objection on the part of the Defendant Central Land, and the Defendant Central Land Tribunal requested an appraisal corporation and Korea appraisal corporation to appraise the amount of redemption of the instant land. As a result, the said redemption ruling was made to dismiss the Plaintiff’s objection on the ground that the amount of redemption ruling is adequate (hereinafter “instant adjudication”).

2. Whether the objection of this case is lawful

(a)The arguments of the Parties;

The plaintiff, at the time of the above agreement acquisition, the defendant Republic of Korea assessed the land of this case, the former land category and use status of which are all before the river, and paid only compensation unfairly low, while the defendant Jung Jung-ok assessed the value at the time of redemption of the land of this case, and decided unfairly higher redemption amount on the ground that the land price at the time of redemption was significantly changed compared with the time of consultation acquisition. Thus, the plaintiff asserted that the judgment of this case was unlawful, and the defendants asserted that the judgment of this case was legitimate in accordance with the relevant Acts and

B. Relevant statutes

When the whole or part of the land, etc. acquired becomes unnecessary due to the discontinuation, alteration, or other causes of the relevant public project within 10 years from the date of the acquisition of the land, etc., the owner of the land, etc. or his/her general successor at the time of the acquisition may pay to the project operator the amount equivalent to the compensation paid for the land, etc. within 10 years from the date of the acquisition of the land, etc. (Article 9(1) of the Public Special Act). In cases where the price of the land, etc. is significantly changed compared with that at the time of the acquisition of the land, etc., the project operator or the purchaser shall consult on such amount. If the consultation is not reached, the land owner or the purchaser may request the land expropriation committee having jurisdiction over the location of the land, etc. under the conditions as prescribed by the Presidential Decree (Article 9(3) of the Public Special Act). The above "where the price of the land, etc. exceeds the amount calculated by multiplying the compensation paid until the time of the repurchase at the time of the exercise of the repurchase by the land, 9.

C. Determination

The purport of each of the above provisions, where the compensation paid at the time of exercising the right of repurchase exceeds the amount calculated by multiplying the compensation paid by the price at the time of repurchase by the fluctuation rate of neighboring similar land unrelated to the relevant business until the time of repurchase, the purport of each of the above provisions, which provides the excess amount as the redemption price, is to hold the value of the land to be redeemed as the redemption price, if the value of the land to be redeemed increases in excess of the ordinary land

However, in the case of the instant land, since it was neglected after the project implementer acquired land not subject to the project through consultation, it is difficult to deem that there was an increase in value due to the implementation of the public project, and the compensation paid for the price of the instant land at the time of exercising the right of repurchase exceeds the amount calculated by multiplying the compensation paid by the fluctuation rate of neighboring similar land at the time of repurchase by the fluctuation rate of neighboring land. However, in assessing the price of the instant land at the time of exercising the right of repurchase, it is merely because the instant land was assessed as the whole, while the appraisal was made at the time of acquiring the right of repurchase by mistake of Defendant Republic of Korea, and only the compensation was paid at the time of the acquisition by consultation. If the compensation was paid by fairly assessing the instant land at the time of the acquisition

Thus, in the case of the land of this case, the price at the time of repurchase cannot be deemed to have been significantly changed compared to the time of acquisition by agreement, and therefore the amount equivalent to the compensation paid should be the amount of repurchase. Therefore, the ruling of this case is unlawful.

3. Conclusion

Therefore, the part of the judgment of this case on the amount of redemption of the land of this case, which was set by the Defendant Central Land Tribunal in excess of 491,620 won (the amount equivalent to the compensation paid shall not exceed 143,820 won or the scope sought by the Plaintiff, and shall not exceed the scope sought by the Plaintiff) which is the redemption amount sought by the Plaintiff, shall be deemed to be unlawful. Accordingly, this part shall be revoked.

The redemption amount of the land of this case is 491,620 won, and as long as the defendant Republic of Korea contests this, it is recognized that there is a benefit to seek confirmation from the plaintiff. Thus, the plaintiff's claim of this case against the defendants of this case is justified, and it is so decided as per Disposition.

Judges Park Gi-ho (Presiding Judge)

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