[1] Whether a person who suffered agricultural loss due to public works can immediately claim compensation for losses against a project operator without going through the adjudication procedure under Articles 34 and 50 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative)

[2] Where a project operator fails to file an application for adjudication even though a landowner or person concerned filed a claim for adjudication with respect to the indemnity for incorporated land, indemnity for obstacles, and compensation for business and agriculture, the method of dissatisfaction against a landowner or person concerned, and whether the project operator is liable to file an application for adjudication at this time is an element to be considered at the stage of examination

[3] Where a landowner or person concerned who suffered losses from the expropriation or use of land, etc. for performing a project under the Korea Water Resources Corporation Act requests the Korea Water Resources Corporation to file an application for adjudication pursuant to Article 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, whether the project implementation plan should be approved within the period of project implementation (affirmative)

[1] In full view of the provisions and legislative purport of Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), in order for a person who suffers agricultural loss to receive agricultural loss from a project operator pursuant to Article 77(2) of the Land Compensation Act to receive an adjudication procedure stipulated in Articles 34 and 50 of the Land Compensation Act, the said person can receive a remedy for damage pursuant to Articles 83 through 85 of the Land Compensation Act only if he/she is dissatisfied with the said adjudication without going through such adjudication procedure.

[2] According to Articles 28 and 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, only a project operator may file an application for adjudication with respect to compensation for incorporated land, compensation for obstacles, compensation for business and agricultural compensation, and landowners and persons concerned shall file an application for adjudication with a project operator. Thus, when a project operator does not file an application for adjudication, a landowner or person concerned must bring an action against a project operator by means of a lawsuit seeking revocation or illegality in omission. In a specific case, whether a landowner or person concerned is obligated to file an application for adjudication on the grounds that the request for adjudication is legitimate, and is not an element to be considered at the stage of determining whether a project operator’s refusal or omission is legitimate, or at the stage of examining the requirements for litigation.

[3] According to the Korea Water Resources Corporation Act, the Korea Water Resources Corporation is a public corporation established to facilitate the supply of water for living, etc. and improve water quality by comprehensively developing and managing water resources (Articles 1 and 2), thereby contributing to the improvement of citizens’ lives and the promotion of public welfare (Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), and may expropriate or use land, etc. pursuant to Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”). Except as otherwise expressly provided for in the Korea Water Resources Corporation Act, the Land Compensation Act shall apply to expropriation or use of land, etc. (Article 24(1) and (7). If an implementation plan is approved and publicly notified pursuant to Articles 10(1) and 22 of the Korea Water Resources Corporation Act, project approval and public notification of project approval shall be deemed granted and applied for adjudication in such cases, notwithstanding Articles 23(1) and 28(1) of the Land Compensation Act.

In full view of the contents, structure, legislative purport, etc. of the aforementioned relevant provisions, in a case where the Korea Water Resources Corporation intends to expropriate or use land, etc. in order to perform a project pursuant to the Korea Water Resources Corporation Act, an application for adjudication shall be filed within the period of implementation of a project determined when the implementation plan is approved. As such, an application for adjudication filed by a landowner or person concerned with the Korea Water Resources Corporation pursuant to Article 30

[1] Articles 26, 28, 30, 34, 50, 61, 77(2), 83, 84, and 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Articles 28, and 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [3] Articles 1, 2, 24(1), (2), and (7) of the Korea Water Corporation Act, Article 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2009Da43461 Decided October 13, 201 (Gong2011Ha, 2302) / [2] Supreme Court Decision 2011Du2309 Decided July 14, 201 (Gong2011Ha, 1642) / [3] Supreme Court Decision 95Nu1551 Decided April 23, 1996

Plaintiff

Korea Water Resources Corporation (Law Firm, Attorneys Tae Tae-Gyeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Nu49293 decided August 28, 2018

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

A. (1) The term “disposition”, which is the subject of an appeal litigation, means “the exercise or refusal of public power, as an enforcement of law with respect to a specific fact by an administrative agency, and other corresponding administrative actions” (Article 2(1)1 of the Administrative Litigation Act). Whether a certain act by an administrative agency may be the subject of an appeal litigation cannot be determined abstractly and generally, and the contents and purport of the relevant Acts and subordinate statutes, the subject, content, form, and procedure of the act, the substantial relation between the act and the disadvantage suffered by interested parties such as the other party, and the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court en banc Decision 2008Du167, Nov. 18, 2010). In addition, whether an administrative agency has the authority to issue a disposition upon an application in a specific case, is not an element to be considered at the stage of determining whether the pertinent disposition is legitimate, and is not an element at the stage of examining litigation requirements.

(2) In full view of the provisions, legislative purport, etc. of Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), a person who incurred agricultural loss due to public work projects may receive remedy for damage pursuant to Articles 34 and 50 of the Land Compensation Act only when he/she objects to the said adjudication after going through the adjudication procedure stipulated in Article 77(2) of the Land Compensation Act in order to receive compensation for agricultural loss from a project operator (see Supreme Court Decision 209Da43461, Oct. 13, 201).

(3) According to Articles 28 and 30 of the Land Compensation Act, only a project operator may file an application for adjudication with respect to the compensation for incorporated land, the compensation for obstacles, and the compensation for business and agriculture, and any landowner and person concerned shall file an application for adjudication with a project operator. Therefore, when a project operator does not file an application for adjudication despite a request for adjudication against a landowner or person concerned, the landowner or person concerned must file an application for adjudication with the project operator by means of a lawsuit seeking revocation of rejection disposition or an action seeking confirmation of illegality in omission (see, e.g., Supreme Court Decision 2011Du2309, Jul. 14, 201). In a specific case, whether a landowner or person concerned is legally liable for an application for adjudication due to a landowner or person concerned, is not an element to be considered at the stage of determining whether the project operator’s refusal disposition or omission

B. On October 11, 2017, the lower court determined that: (a) the Plaintiff’s filing of a claim for adjudication in order to compensate the Defendant for agricultural loss of each of the instant lands; and (b) the Defendant’s filing of the instant rejection request against the Plaintiff on January 5, 2018 on the ground that “the period for implementation of this case expires and the Defendant has no right to file an application for adjudication;” and (c) rendered a judgment on whether the Defendant’s ground for rejection was justifiable and reasonable. In so doing, the lower court did not err by misapprehending the legal doctrine on the nature of the disposition, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. (1) Under the Korea Water Resources Corporation Act, the Korea Water Resources Corporation is a public corporation established for the purpose of contributing to the improvement of people’s lives and the promotion of public welfare by facilitating the supply of water for living and improving water quality through the comprehensive development and management of water resources (Articles 1 and 2). If necessary for the performance of projects, land, etc. under Article 3 of the Land Compensation Act shall be expropriated or used. Except as otherwise provided in the Korea Water Resources Corporation Act, the Land Compensation Act shall apply to the expropriation or use of land, etc. (Article 24(1) and (7). If the Korea Water Resources Corporation approves and publicly notifies an implementation plan under Article 10 of the Korea Water Resources Corporation Act, it shall be deemed that project approval and public notice has been given pursuant to Articles 20(1) and 22 of the Land Compensation Act. In such cases, an application for adjudication shall be made within the implementation period of a project determined at the time of approval of the implementation plan, notwithstanding Articles 23(1) and 28(1) of the Land Compensation Act (Article 24(2).

(2) In full view of the contents, structure, legislative purport, etc. of the aforementioned relevant provisions, in a case where the Korea Water Resources Corporation intends to expropriate or use land, etc. in order to perform a project under the Korea Water Resources Corporation Act, an application for adjudication shall be filed within the period of implementation of the project as determined when the implementation plan is approved. Therefore, it is reasonable to deem that a claim filed by a landowner or person concerned for adjudication against the Korea Water Resources Corporation under Article 30 of the Land Compensation Act should also be filed within the said period of implementation (see Supreme Court Decision 95Nu1551, Apr. 2

B. According to the reasoning of the first instance judgment cited by the lower court, since the Minister of Land, Transport and Maritime Affairs approved and publicly announced the instant project implementation plan against the Defendant, and the period of implementation of the instant project thereafter extended, can be seen as “within December 2012,” the Plaintiff’s claim for adjudication against the Defendant shall be made until December 31, 2012, which is the project implementation period determined by the approving authority. However, since the Plaintiff’s claim for adjudication against the Defendant for adjudication was made on October 11, 2017 in order to compensate the Defendant for agricultural losses of each of the instant land, the Plaintiff’s claim for adjudication is unlawful, and the Defendant’s refusal disposition against the Plaintiff on January 5, 2018 should be deemed lawful.

C. Nevertheless, the lower court determined that the instant refusal disposition was unlawful on the ground that the restriction on the time limit for application for adjudication under Article 24(2) of the Korea Water Resources Corporation Act does not apply to an application for adjudication for an adjudication for compensation of agricultural losses, at any time during the period during which the Plaintiff may exercise the right to claim compensation for losses. In so determining, the lower court erred by misapprehending the legal doctrine on the time limit for application for adjudication under the Korea Water Resources Corporation Act, thereby adversely affecting

3. Conclusion

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.

Justices Kim Jong-hee (Presiding Justice)