In cases where a project operator fails to pay or deposit a compensation for adjudication by the commencement date of expropriation and files an application for adjudication again because the adjudication and the application for adjudication lose its validity, whether additional dues for delay shall be paid in the event that the application for adjudication is filed within the period and the period of the application for adjudication (affirmative)

When any project operator fails to pay or deposit the adjudication compensation by the commencement date of expropriation, the adjudication shall lose its effect (Article 42 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), and any application for adjudication filed by any project operator shall also lose its effect, and any project operator shall file an application for adjudication again with the Land Tribunal. When any landowner and any related person (hereinafter “ landowner, etc.”) have already filed a claim for adjudication before the adjudication becomes effective, such application shall be filed within 60 days from the date the adjudication becomes effective, and when an application for adjudication has been filed after the expiration of the period, the amount calculated by applying the statutory interest rate under Article 3 of the Act on Special Cases concerning Promotion, etc. of Legal Proceedings (hereinafter “additional charges”).

The Land Compensation Act (Article 42 (2) and (3) of the Land Compensation Act) separates the provisions on the compensation for losses suffered by landowners, etc. due to the invalidation of adjudication from the additional provisions on the compensation for delay. The additional charges for delay also has the character of imposing sanctions on delay without filing an application for adjudication within the fixed period of time and compensating for losses suffered by landowners, etc.

As above, if a project operator applies for a new adjudication after the adjudication becomes void, in principle, the compensation consultation procedure again is not required, and thus, additional charges for delay shall accrue after the lapse of 60 days from the date the adjudication becomes effective. However, even if a project operator fails to file an application for adjudication within 60 days from the date the adjudication becomes effective, if special circumstances exist that make it impossible to deem that the application for adjudication was delayed, no additional charges for delay shall accrue during the pertinent period. The period for which consultation was held following an agreement between the landowner, etc. and the project operator to re-consult the compensation consultation procedure after the adjudication becomes effective belongs

Articles 30 and 42 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 84Nu158 Decided March 10, 1987 (Gong1987, 649) Supreme Court Decision 2012Du11287 Decided February 26, 2015

Plaintiff 1 and one other (Law Firm Woo, Attorneys Lee Ho-soo et al., Counsel for the plaintiff-appellant)

Simsan Group Co., Ltd. (Attorneys Su Byung-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu36774 decided November 3, 2016

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

The lower court determined that the Defendant succeeded to the rights and obligations of the project operator, including the obligation to file an application for adjudication on the instant land, from the Mayang-Co., Ltd. (hereinafter “Mayang-Co”), the former project operator of the instant project.

Examining the reasoning of the lower judgment in light of the relevant statutory provisions and the record, such determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the succession to the status of a project implementer.

2. Regarding ground of appeal No. 2

A. According to Article 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), where no agreement is reached after a public announcement of project approval, a landowner and person concerned (hereinafter “land owner, etc.”) may request a project operator to file an application for adjudication in writing (Paragraph 1). A project operator shall file an application for adjudication with the competent Land Tribunal within 60 days from the date on which the application is filed (Paragraph 2). If a project operator files an application for adjudication after the lapse of the said period, the project operator shall pay an amount calculated by applying the statutory interest rate under Article 3 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “refist charges”) for the delayed period in addition to the compensation adjudicated by the competent Land Tribunal (hereinafter “adjudication compensation”).

Meanwhile, when a project operator fails to pay or deposit the indemnity by the commencement date of expropriation, the adjudication by the Land Tribunal shall lose its effect (Article 42(1) of the Land Compensation Act), and the project operator’s application for adjudication also lose its effect (see Supreme Court Decision 84Nu158, Mar. 10, 1987). A project operator shall again file an application for adjudication with the Land Tribunal. If a landowner, etc. has already filed a claim for adjudication before the adjudication becomes effective, the application shall be filed within 60 days from the date the adjudication becomes effective, and if the application for adjudication has already been filed after the expiration of the period, additional dues shall be paid for the delayed period (see Supreme Court Decision 2012Du1287, Feb. 26, 2015).

The Land Compensation Act separates the provisions for compensating for losses suffered by landowners, etc. due to the invalidation of adjudication (Article 42 (2) and (3) of the Land Compensation Act) from the provisions for additional charges. The additional charges for delay also has the character of imposing sanctions for delay without filing an application for adjudication within the fixed period of time and compensating for losses suffered by landowners, etc.

As above, in a case where a project operator applies for a new adjudication after the adjudication becomes void, the compensation consultation procedure again is not required as a matter of principle (see Supreme Court Decision 2012Du11287, supra), and, in principle, additional dues for delay shall accrue after the lapse of 60 days from the date the adjudication becomes effective. However, even if a project operator fails to file an application for adjudication within 60 days from the date the adjudication becomes effective, if there are special circumstances where it is not possible to deem that the application for adjudication was delayed, additional dues for the pertinent period shall not be incurred. It is reasonable to view that the consultation is in such cases during which the period agreed to re-consult with the landowner, etc. after the adjudication becomes effective.

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

(1) On January 29, 2010, the Plaintiffs filed an application for adjudication of expropriation with respect to the instant land owned by the Plaintiffs located within the instant project zone with respect to Mayang, which was the previous project implementer of the instant project. Accordingly, the first adjudication of expropriation was invalidated as Mayang, upon filing an application for adjudication on August 23, 2010 (hereinafter “the first adjudication of expropriation”), but the first adjudication of expropriation was made on August 23, 2010, but the first adjudication of expropriation was not paid or deposited by September 23, 2010 as the date of commencement of expropriation stipulated in the first adjudication of expropriation (the date of September 23, 2010).

(2) Subsequent to July 28, 2011, the operator of the instant project was changed to the Defendant pursuant to the development plan and implementation plan for the general industrial complex (No. 2011-200 of the Gyeonggi-do Public Notice) of Pyeongtaek-si 201. The Defendant sent a public notice to landowners, etc., including the Plaintiffs, requesting the recommendation of a compensation schedule and an appraisal business entity. On September 19, 201, the Defendant entered into an agreement on the compensation duty with the “Wol 2 New Industrial Complex Policy Committee (hereinafter “Non-Subrogation”) comprised of landowners, etc. in the instant project area (hereinafter “instant Non-Subrogation”). According to the contents of the compensation duty agreement, according to the aforementioned compensation duty agreement, the Plaintiff was planned to select one appraiser and undergo the appraisal procedure by selecting one resident representative, Pyeongtaek-si Urban Corporation and Defendant.

(3) The Defendant requested an appraisal corporation in three places to submit an appraisal report in accordance with the above compensation business agreement, and the following consultation period was set from November 16, 201 to December 16, 201, and agreed on compensation with landowners, including the Plaintiff, etc., but filed an application for adjudication of expropriation again on January 30, 2012, which did not reach such agreement.

C. Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Defendant and the landowner, etc. again agreed that the compensation consultation procedure would be followed once again after the lapse of the first expropriation adjudication, inasmuch as the first expropriation adjudication became null and void due to the failure of the Defendant to pay or deposit the compensation by the date of commencement of the second expropriation adjudication, which was determined by the said adjudication. Accordingly, the Defendant, who succeeded to the rights and obligations of the instant project operator, did not, in principle, undergo the procedures for consultation with the landowners, etc., in principle. Nevertheless, in light of the developments leading up to the conclusion of the agreement by which the Defendant, who newly became the instant project operator, requested the landowners, etc. to provide an instruction on the compensation schedule and the appraisal business recommendation, and then entered into the compensation business agreement with the landowners, etc., the period from September 19, 2011 to the date on which the Defendant applied for the second expropriation adjudication, which had concluded the compensation business agreement with the landowner, etc., to the date on which the second expropriation adjudication expires.

Therefore, the lower court should further examine the specific details and contents of the agreement between the Defendant and the Defendant regarding the compensation duty agreement, the subsequent implementation process, and the details in which the Plaintiffs participated, and determine whether it can be deemed that an agreement was reached between the Plaintiffs and the Defendant to take a re-consultation procedure based on the above compensation duty agreement, etc., and should have determined the period for the occurrence of additional dues to be borne by the Defendant in accordance with the legal doctrine as seen earlier. Nevertheless, the lower court, without further determination on such circumstances, determined that the additional dues for delay should be incurred from the date when the first expropriation ruling becomes null and void and sixty (60) days have passed before the Defendant again filed an application for the adjudication of expropriation. In so determining, the lower court erred by misapprehending the legal doctrine on additional charges for delay under Article 30(3) of the Land Compensation Act, which led to the failure

3. 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 Park Poe-young (Presiding Justice)