[1] Whether an agreement is included in cases where a project operator does not enter into an agreement because he/she did not enter into an agreement without excluding the subject matter of compensation, although the landowner, etc. claims that “when an agreement is not reached” under Article 30(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and the landowner, etc. claims compensation as an object of compensation (affirmative)

[2] In a case where the owner of land in a road construction project zone claimed an application for adjudication on any obstacle to land, but the project operator refused the application for adjudication on expropriation on the ground that part of the land is not subject to the compensation, and did not hold a consultation on compensation, the case affirming the judgment below holding that the above disposition is unlawful

[1] Article 30(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act on Acquisition of and Compensation for Land, etc.”) provides that “when an application for adjudication is not concluded” between a project operator, a landowner, and a person concerned, and does not limit the grounds therefor, such as where an agreement has not been concluded with respect to the object of compensation. The purport of the provision granting a landowner, etc. a right to claim for adjudication is to efficiently perform public works and properly protect the property rights of landowners, etc. by settling the legal relationship on compensation when acquiring or using land, etc. necessary for public works by expropriation. In light of the fact that even if an agreement on compensation for losses has not been concluded due to different opinions on the object of compensation for losses, it is necessary to promptly determine the legal relationship on compensation for losses through adjudication even in cases where an agreement on compensation for losses has not been concluded, the “when an agreement is not reached” includes cases where a project operator, etc. goes through the consultation procedure stipulated in Article 26 of the Public Works Act with a landowner, etc., but does not constitute an object of compensation, and the agreement is not concluded.

[2] In a case where the owner of land located in a road construction project zone between A and IBB claimed an application for adjudication on the land obstacles, but the project operator refused the application for adjudication on expropriation for the reason that part of the land is not subject to compensation, and did not hold a consultation on compensation, the case affirming the judgment below which held that the project operator's failure to reject the application for adjudication on expropriation or to take any measure without consultation on compensation is unlawful against the purport of the claim for adjudication under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Article 30 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 30 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff 1 and one other (Law Firm Cheongam, Attorneys Cho Il-i et al., Counsel for the plaintiff-appellant)

Korea

Daejeon High Court Decision 2010Nu2096 decided December 23, 2010

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the deadline).

Article 30(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that “If an agreement is not reached after a public announcement of project approval, a landowner and person concerned may request a project operator to file a written application for adjudication under the conditions as prescribed by the Presidential Decree.” The above provision provides that where an application for adjudication may be filed, “where an agreement is not reached” between a project operator, a landowner and a person concerned (hereinafter “owner, etc.”), but does not limit the grounds for not agreement, such as where an agreement is not concluded due to different opinions on the object of compensation. The purport of granting a landowner, etc. a right to claim for adjudication is to efficiently perform a public work and properly protect the property rights of landowners, etc. by settling the legal relationship on compensation for the acquisition or use of land, etc. necessary for a public work by expropriation. In light of the above, even if an agreement on compensation for losses is not concluded due to the disagreement on the object of compensation for losses, it is necessary to promptly determine the legal relationship on compensation for losses, notwithstanding the request for consultation between the landowner, etc.

Based on its adopted evidence, the court below rejected an application for adjudication on the ground that the Plaintiff did not constitute an object of compensation, and rejected an application for adjudication on the ground that it did not constitute a separate claim for adjudication on the aforementioned obstacles on January 4, 2010, because the Plaintiff did not continuously claim the obstacles described in the attached list Nos. 7 through 28 of the judgment below on the land located in the project area in the process of consultation on compensation for losses between the Daejeon Regional Land Management Office for Road Construction, or in the process of adjudication on expropriation and objection and claim for compensation for losses, but did not claim the damages on the ground that there was no adjudication or objection on the obstacles. Accordingly, the court below rejected an application for adjudication on the above obstacles on the ground that they did not constitute an object of compensation for the obstacles described in the above serial number Nos. 7 through 10, 17 or 19 of the above serial number on the ground that it did not interfere with the purport of the claim for adjudication on the above obstacles or the claim for adjudication on the damages after the consultation period expires.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the application for adjudication under Article 30 of the Public Works Act.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)