[1] The nature of a lawsuit brought against a landowner against an adjudication rendered by the Land Tribunal which did not accept a claim for expropriation of remaining land under Article 74(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and the other party thereto

[2] The legal nature of the period of exercise of the right to request the expropriation of the remaining land under Article 74(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (=the period of exclusion) and the party who expressed his/her intent to request the expropriation

[3] The case holding that the court below's decision which failed to take such measures was erroneous in failing to exhaust its duty of explanation and failing to exhaust its deliberation properly, in case where a part of the land was incorporated into an expressway construction project on the land, and the project implementer claims compensation such as the cost of site creation, etc., if the cost of site creation is not recognized as a separate object of compensation, the landowner should have given the landowner an opportunity to state his opinion on the purport of seeking compensation for losses caused by the decline in the price of the remaining land and should have deliberated and decided on the propriety thereof

[1] The right to request the expropriation of remaining land under Article 74 (1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007) has the nature of the formation right that takes effect upon the request of the Land Tribunal, even if there is no adjudication by the Land Tribunal which accepts the remaining land, and thus, a lawsuit filed by the Land Tribunal against the adjudication of the land tribunal which rejected the request for the expropriation of the remaining land constitutes the " lawsuit on the increase or decrease of compensation" under Article 85 (2) of the said Act, and thus, the project operator shall be the defendant.

[2] According to Article 74(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007), a request for expropriation of remaining land shall be made to the competent Land Tribunal before the competent Land Tribunal makes a ruling on expropriation of a group of land in cases where a project implementer fails to reach an agreement on purchase between the project implementer and the competent Land Tribunal. The period for exercising the right to request expropriation of the remaining land shall be the exclusion period, and if the landowner exercises the right to request expropriation of the remaining land within the exclusion period, the right shall be extinguished. In addition, in light of the language and text, etc. of the above provision, the expression of intent to request expropriation of the remaining land shall be made to the competent Land Tribunal, unless there is any circumstance to deem that the competent Land Tribunal has granted the project implementer the right to receive the declaration of intent to request expropriation of the remaining land, it

[3] In a case where a land owner created a site to newly build lodging facilities on his/her own land, and part of the land was incorporated into an expressway construction project between Ysan and Y, the case holding that the cost of site creation spent on the remaining land is only reflected in calculating the amount of compensation for losses caused by reduction in the remaining land within the limit of increasing the value of the land, and the cost of site creation spent on the remaining land is not subject to separate compensation, and if the cost of site creation incurred on the remaining land is not recognized as subject to separate compensation, the land owner has been given an opportunity to state his/her opinion as to the purport of seeking compensation for losses caused by reduction in the price of the remaining land and had deliberated and decided on the propriety thereof, but it was erroneous in the

[1] Article 74 (1) 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) / [2] Article 74 (1) 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) / [3] Article 74 (1) 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)

[1] [2] Supreme Court Decision 99Du11080 delivered on September 4, 2001 (Gong2001Ha, 2187) / [1] Supreme Court Decision 93Nu20627 delivered on September 15, 1995 (Gong195Ha, 3414)

Plaintiff

Korea Highway Corporation (Law Firm White General Law Office, Attorneys Kim Young-young et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2007Nu80 decided December 14, 2007

Of the judgment of the court below, the part concerning the claim for compensation of cancer blasting and transportation, access road construction cost, retaining wall construction cost, household line construction cost, civil engineering design cost, change of land form and quality of land is reversed, and this part of the case is remanded to the Gwangju High Court. The remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

A. Article 74(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665, Oct. 17, 2007; hereinafter “Public Works Act”) provides that the right to claim the expropriation of the remaining land shall be granted to the land owner as part of compensation for losses, and if the land owner satisfies the requirements, the right to claim the expropriation of the remaining land has the nature of formation of the right to claim the expropriation (see Supreme Court Decisions 93Nu20627, Sept. 15, 1995; 9Du11080, Sept. 4, 2001; 9Du1080, Sept. 2, 2001; hereinafter “Public Works Act”) and the lawsuit filed against the land owner against the adjudication of the land tribunal who has not accepted the request for the expropriation of the remaining land constitutes “litigation related to an increase or decrease of compensation” as provided by Article 85(2) of the Public Works Act and thus the project owner must be the

Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the form of a lawsuit claiming expropriation of remaining land, which rejected the Plaintiff’s claim against the Defendant, not the Central Land Expropriation Committee, but the project implementer.

B. However, according to Article 74(1) of the Public Works Act, where a project operator fails to reach an agreement on purchase, a request for expropriation of the remaining land shall be made to the competent Land Tribunal before the competent Land Tribunal makes a ruling on expropriation of part of the land (Article 48(1) of the Land Expropriation Act (amended by Act No. 6656 of Feb. 4, 2002). The period for exercising the right to request expropriation of the remaining land is the exclusion period, and the right is extinguished if the landowner exercises the right to request expropriation of the remaining land within the exclusion period (see Supreme Court Decision 99Du11080, Sept. 4, 200). In addition, in light of the language and text, etc. of the above provision, the expression of intent to request expropriation of the remaining land must be made to the competent Land Tribunal, and it cannot be deemed that the competent Land Tribunal has granted the project operator the right to receive the declaration of intent to request expropriation of the remaining land.

According to the reasoning of the judgment below and the records, while each part of the above land (hereinafter “each land subject to expropriation of this case”) was incorporated into the Ysan-si Highway Construction Project, in order to construct a 495m2 in the 306m2, 306-2, 494m2, 306-3, and 485m2 in the same Ri, which was owned by the Plaintiff, in the knowledge of Jeonju-gun-gun-gun-gun-gun-gun-gun, the said land was constructed as a site for the construction of a m2, each of the above land (hereinafter “each of the above land subject to expropriation of this case”) was incorporated into the Ysan-si Highway-si Highway-si Highway-si Highway-si Highway-si, the Defendant, who is the project operator around March 11, 2002, did not appear to have been able to have been able to have been delegated with the pertinent land expropriation committee’s declaration of intention on the remaining land subject to expropriation of this case (hereinafter “the remaining land”).

Supreme Court Decision 2002Du4679 Decided January 28, 2005 cited by the plaintiff is related to a case where a local government, as a project operator, has filed an application for adjudication to acquire land under the jurisdiction of the competent Land Tribunal, and the head of the district government, upon the request of the competent Land Tribunal, publicly announces and provides for perusal copies of the application for adjudication and related documents, and notifies the landowner, etc. to present their opinions to the relevant local government or the competent Land Tribunal, and it is inappropriate to invoke

Therefore, the decision of the court below that rejected the Plaintiff’s claim on this portion is justified, and the lower court’s error as seen earlier is not affected by the judgment. The allegation in the grounds of appeal on this part is not acceptable.

2. As to the third ground for appeal

A. The lower court determined that the Plaintiff’s claim for this part is not reasonable, on the ground that the cost of construction design, which the Plaintiff sought compensation, does not have any evidence to support the fact that the disbursement was made, and the cost of blasting and transporting cancer, access road construction, retaining wall construction, household line construction, civil engineering design cost, and cost of altering the form and quality of land (hereinafter “site creation cost”) is not accepted by the Plaintiff’s request for expropriation of remaining land, insofar as the cost of construction design, which is less than the cost of blasting and transport of cancer, is limited to the portion paid for each land to be expropriated in the instant case. The cost of site construction spent for each land to be expropriated in the instant case, is merely evaluated as a whole into each land to be expropriated

B. In light of the records, the judgment of the court below on the construction design cost and the site creation cost paid to each of the land to be expropriated in this case is just, and there is no error of law such as misunderstanding of legal principles as to appraisal of compensation amount, as otherwise alleged in the ground of appeal. The

C. However, the cost of site creation spent on each remaining land of this case is only reflected in calculating the amount of compensation for losses caused by the reduction in the price of the remaining land within the limit of increasing the value of the relevant land, and is not separately subject to compensation. According to the records, the plaintiff asserted that the plaintiff should compensate for the decline in the price of each remaining land of this case due to the impossibility of new construction through land expropriation through the preparatory documents dated December 6, 2006, and the defendant presented the compensation amount of 14,420,000 won to the plaintiff around January 9, 204. The plaintiff submitted the written request for consultation with the plaintiff as evidence No. 8. Thus, the court below should have deliberated on whether the plaintiff sought compensation for losses due to the reduction in the price of the remaining land if the cost of site creation spent on each remaining land of this case is not recognized as separate compensation. If the plaintiff's assertion is made to the same purport as the plaintiff's assertion, the court should have deliberated and judged the legitimacy thereof.

Without taking such measures, the court below erred by failing to fully examine the plaintiff's claim on the ground that it is not necessary to determine whether to compensate for the cost of creating a site spent on the remaining land of this case as long as the claim for expropriation of the remaining land is not accepted, and such illegality has influenced the judgment. The ground of appeal pointing this out has merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for compensation of the remaining land shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Nung-hwan (Presiding Justice)