Korea Buddhist Cho Jae-sung (Law Firm Shin, Attorney Kim Jong-nam, Counsel for the plaintiff-appellant)

Gyeonggi-do (Attorney Lee-hoon et al., Counsel for the defendant-appellant)

October 26, 2010

Suwon District Court Decision 2009Guhap14287 Decided June 16, 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 shall pay to the plaintiff 1,423,490,000 won with 20% interest per annum from the day following the delivery of a copy of the application for modification of the purport of this case to the day of complete payment.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning of this court's judgment is the same as that of the first instance court's judgment, in addition to addition or dismissal below.

▣ 제1심 판결문 3쪽 밑에서 4째줄의 “제982호”를 “제892호”로 고친다.

▣ 제1심 판결문 4쪽 6째줄부터 밑에서 3째줄까지의 부분을 다음과 같이 고친다.

『⑵ 하천편입토지 보상 등에 관한 특별조치법(이하 ‘특별조치법’이라 한다) 제2조 는, 그 적용대상이 되는 유수지를 ‘법률 제2292호 하천법개정법률(이하 ’1971년 하천법‘이라 한다)의 시행일 전에 유수지에 해당되어 하천구역으로 된 경우’( 제1호 ) 또는 ‘1971년 하천법 시행일부터 법률 제3782호 하천법중개정법률(이하 ’1984년 하천법‘이라 한다)의 시행일 전에 유수지에 해당되어 하천구역으로 된 경우’( 제2호 )로 규정하고 있는 반면, 제외지에 대해서는 ‘1971년 하천법의 시행으로 제외지가 국유로 된 경우’( 제3호 ) 또는 ‘법률 제892호 하천법(이하 ’제정 하천법‘이라 한다)의 시행일부터 1971년 하천법의 시행일 전에 제외지가 국유로 된 경우’( 제4호 전단)로, 제방부지에 대해서는 ‘제정 하천법의 시행일부터 1971년 하천법의 시행일 전에 제방부지가 국유로 된 경우’( 제4호 후단)만을 그 적용대상으로 규정하고 있다.

Therefore, in the language and text of the above special measures, there are explicit compensation regulations for land incorporated into a river area as a reservoir before the enforcement date of the River Act in 1971 from the enforcement date of the River Act in 1984, but there is no explicit compensation regulations for land incorporated into a river area as a bank site or exclusion area.

However, comprehensively taking account of the following grounds for amendment of the Act on Special Measures, relevant provisions, purport of the Supreme Court’s decision, and grounds for the Constitutional Court’s decision, Article 2 of the Act on Special Measures ought to apply mutatis mutandis to land, which is nationalized as a site or exclusion from the bank site from the enforcement date of the River Act in 1971 ( July 20, 1971) to the enforcement date of the River Act in 1984 ( December 31, 1984).

The Act on Special Measures was enacted in the reflective consideration that the compensation was not sufficiently made due to the incompleteness of the compensation regulations, although the Act was amended and the Special Act was enacted with respect to the land, etc. in the state-owned river area.

The most fundamental and key point of the incomplete compensation regulations is that all the land which became a river area under the determination and public notice of the management agency was subject to compensation for losses at the time when the river area was adopted prior to the enforcement of the River Act in 1971. However, the previous system was changed into the statutory system of the river area due to the implementation of the River Act in 1971, and there was no specific compensation regulations as to the reservoir site and the exclusion (the Supreme Court interpreted the compensation provisions of the River Act in 1971 broadly the object of compensation if the reasons for compensation are listed as examples of the reasons for compensation, but the judgment was sentenced after the enforcement of the River Act in 1984, and thus, it was effective in order to compensate for the land incorporated into the river area after the enforcement of the River Act in 1971).

Article 2 (1) of the Addenda to the River Act in 1984 provides that "(the river area becomes a reservoir prior to the enforcement date of the River Act in 1984) or the non-execution date of the River Act in 1971 becomes a state-owned property," but the scope of compensation has been gradually expanded by related special laws and Supreme Court precedents.

○ The above Supreme Court precedents provide that the compensation provision shall apply mutatis mutandis to a bank site owned by the State prior to the enforcement of the River Act in 1971 or a bank site owned by the State prior to the enforcement of the River Act in 1971. However, the theoretical ground is consistent, “Unless there is an explicit compensation provision regarding the site of river appurtenances, so long as it becomes a State-owned property as well as a reservoir and exclusion site, the compensation for the loss incurred thereby shall be compensated, and there is no reasonable ground different from the method of compensation concerning the reservoir and exclusion, etc.” (see Supreme Court Decisions 94Da34630, Nov. 24, 1995; 201Da3045, Sept. 25, 2001; 203Da1621, Jun. 27, 2003; 2003Da16221, Jan. 19, 207).

In the case of constitutional complaint filed by the Plaintiff, the Constitutional Court held that the Plaintiff satisfied the requirements of “compensation by law” under Article 23(3) of the Constitution on the grounds that it is possible to claim compensation for land incorporated into the river area after the enforcement of the River Act in 1971, based on the fact that it is possible to claim compensation for losses under the Act on Special Measures, etc. for the land incorporated into the river area after the enforcement of the River Act (see Constitutional Court en banc Order 2008Hun-Ba6, Feb. 25, 2010).

Therefore, Article 2 of the Act on Special Measures shall apply mutatis mutandis to the case where the bank and exclusion area among the land of this case were incorporated into the area of Ycheon River only in 1983 and became a national ownership.

2. Conclusion

The judgment of the court of first instance must accept the plaintiff's claim. Therefore, it is just, and the defendant's appeal is dismissed as there is no ground for appeal.

Judges Sung Pung-tae (Presiding Judge)