The form of litigation concerning the right to claim compensation for the discontinuance, etc. of a project pursuant to Article 79(2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (=administrative litigation) and whether a person who suffered loss due to the discontinuance, etc. of a project due to public works should undergo a decision procedure to receive compensation pursuant to

Article 79(2) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Act”) and Article 57 of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor is a kind of right in public law, which compensates the special sacrifice of property by legitimate exercise of public authority, such as the implementation of public works, from the perspective of the overall equitable burden, the subject of the public works is clearly entitled to compensate for the loss. Thus, a lawsuit on such action shall be based on an administrative litigation procedure, not civil litigation. In addition, in full view of the above provisions and Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the former Act, a person who is dissatisfied with a judgment on the discontinuation of public works, etc. shall be subject to Article 84 of the former Act.

Articles 26, 28, 30, 34, 50, 61, 79(2), 83, 84, and 85 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 8665, Oct. 17, 2007); Article 57 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

D. S.C. (Law Firm Western, et al., Counsel for the defendant-appellant)

Korea Land and Housing Corporation (Law Firm Oyn Law, Attorneys Final Apum et al., Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2009Na981 Decided February 5, 2010

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The case is transferred to Daejeon District Court Panel Division.

ex officio deemed.

Article 79(2) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”) provides that “The standards prescribed by the Ordinance of the Ministry of Construction and Transportation shall apply to the compensation, etc. for losses incurred by the implementation of other public works,” and Article 57 of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Enforcement Rule of the Act on the Acquisition of Land, etc.”) provides that “compensation for business discontinuance, etc.” under the title of “compensation for construction of a building due to the implementation of public works, where a project, etc. under process under relevant Acts and subordinate statutes, such as building permission, etc. for construction of a building, is discontinued, altered or suspended, the compensation shall be made for losses, such as statutory fees and other expenses

The right to claim compensation for the discontinuance, etc. of a project pursuant to the above provisions is clear that it is a right under public law, not civil litigation, in light of the overall equitable burden of compensation for the special sacrifice of property caused by a legitimate exercise of public authority, such as the implementation of a public project. In addition, in full view of the above provisions and Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the former Public Works Act, a person who suffers loss due to the discontinuance, etc. of a project shall be entitled to remedy for infringement of rights pursuant to Articles 83 through 85 of the former Public Works Act only when he/she is dissatisfied with the adjudication procedure stipulated in Articles 34 and 50 of the former Public Works Act.

According to the reasoning of the first instance judgment cited by the lower judgment and the record, the Plaintiff’s promotion of an urban development project in the Incheon-si (hereinafter omitted) in accordance with the Urban Development Act, and the area substantially overlaps with the above project area was designated and publicly announced as a planned district for the national rental housing complex in the Yan-gu, Incheon-si, which is a public project of this case. Accordingly, it can be known that the Plaintiff sought compensation for expenses incurred by the Plaintiff in order to promote an urban development project pursuant to Article 57 of the Enforcement Rule of the Public Works Act, and thus, the instant lawsuit constitutes administrative litigation.

Nevertheless, the court of first instance and the court below erred by misapprehending the legal nature of the right to claim compensation for the discontinuance of business and the legal principles on the form of lawsuit when the plaintiff's claim of this case was deliberated and judged through civil procedure on the premise that it is the object of civil procedure.

On the other hand, it is difficult to view that the lawsuit in this case was dismissed as it was unlawful because it did not undergo a ruling, since the first instance court and the original instance court did not have deliberated on whether the claim for compensation for the discontinuance of the business in this case was made a ruling, and therefore, it is reasonable to transfer this case to the competent court (see, e.g., Supreme Court Decisions 95Da28960, May 30, 1997; 2007Da2428, Sept. 17, 2009).

Therefore, without further proceeding to decide on the grounds of appeal, the judgment of the court of first instance shall be reversed ex officio, and the judgment of the court of first instance shall be revoked, and the case shall be transferred to the Daejeon District Court Panel Division which is the competent court for a new trial and determination. It is so decided as per Disposition by

Justices Shin Young-chul (Presiding Justice)