[1] Whether a landowner, etc. and a project implementer may enter into a contract for the acquisition or use of land, etc. and the compensation therefor by re-consultations with the land owner, etc. after the Land Tribunal rendered a ruling of expropriation under the Act on Acquisition of and Compensation for Land, etc.

[2] The case holding that in case where Gap and the project implementer completed the registration of ownership transfer on Gap's land for a public project implemented by the head of the Regional Construction and Management Administration after making a ruling of expropriation for a public project implemented by the head of the Regional Construction and Management Administration, Gap and Gap filed a lawsuit seeking confirmation of nullity of the adjudication of expropriation on Gap's land ownership by asserting that "the adjudication of expropriation was invalidated because Gap did not pay and deposit the full amount of the compensation for expropriation until the commencement of expropriation," and Gap filed a lawsuit claiming confirmation of nullity of the adjudication of expropriation, the land ownership cannot be restored even if Gap received the judgment of nullification of the adjudication of expropriation,

[1] The Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “Land Compensation Act”) stipulates that a project operator shall first undergo the procedure for acquiring land through consultation, and that a project operator shall take the procedure for acquiring land by expropriation when an agreement is not reached or it is impossible to hold a consultation. On the other hand, even if the Land Tribunal rendered a ruling of expropriation, a project operator may lose its validity due to failure to pay or deposit the compensation adjudicated by the Land Tribunal by the commencement date of expropriation or use. A landowner, etc. may raise an objection against the adjudication of expropriation or institute an administrative litigation, and dispute whether the compensation is appropriate. In light of the legislative purpose of the Land Compensation Act (Article 1) to promote public welfare through efficient implementation of public works and properly protect property rights, it is difficult to find out any particular need to prohibit consultation acquisition procedures with the substance of private contracts after the adjudication of expropriation after consultation with the landowner, etc.

[2] The case holding that in case where Gap and the project implementer filed a lawsuit seeking confirmation of invalidity of the expropriation adjudication claiming that "A and the project implementer completed the registration of ownership transfer on Gap's land for a public project implemented by the head of the Regional Construction and Management Administration after making an adjudication of expropriation for the public project, Gap and the project implementer completed the registration of ownership transfer on the ground of consultation acquisition," and Gap filed a lawsuit claiming that "the adjudication of expropriation was invalidated because the full amount of the compensation for expropriation was not paid or deposited by the commencement date of expropriation", Gap and the project implementer newly set the compensation amount for the land after the adjudication of expropriation was made, and the ownership transfer registration was completed on the basis of this decision, it is sufficient to view that Gap and the project implementer newly entered into an agreement that "A transfer ownership of the land and the amount of compensation, which is the compensation amount," separate from the adjudication of expropriation, and if the registration of ownership transfer is completed on Gap's land ownership transfer according to the procedure of such separate consultation acquisition, it is impossible to recover the ownership of the land even if Gap obtained the judgment of nullification of the adjudication

[1] Articles 14, 17, 26, 28(1), 42(1), 45(1) and (2), and 50(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 12 of the Administrative Litigation Act; Articles 14, 17, 26, 28(1), 42(1), 45(1) and (2), and 50(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff (Law Firm Jinjin, Attorneys Song Jae-sik et al., Counsel for the plaintiff-appellant)

The Central Land Expropriation Committee

Republic of Korea (Law Firm Hyundai, Attorneys Lee Jong-ro et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu48166 decided November 24, 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

A. In a lawsuit seeking confirmation of invalidity or revocation of an administrative disposition, where it is not possible to recover the state of illegality caused by the administrative disposition to the original state on the grounds of its illegality, there is no legal interest in seeking confirmation of invalidity or revocation, in principle, and where there remains other rights or interests that can be recovered by such nullification or revocation even if reinstatement is impossible (see Supreme Court Decision 2013Du1638, Jun. 10, 2016, etc.).

According to the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter referred to as the "Land Compensation Act"), a project operator may acquire or use the land, etc. by the following two methods if it is necessary to acquire or use the land, etc. for the performance of public works

First, a project operator may enter into a contract for the compensation of land, etc. after consulting with landowners and persons concerned about the compensation for the land, etc. prior to project approval or after undergoing certain procedures, such as preparation of land and goods protocols, perusal of a compensation plan, etc. (hereinafter “consultation acquisition”). In such cases, an agreement on compensation is deemed to have the substance of private contracts conducted by a public institution as a private economic entity, and thus, may determine compensation for losses not in compliance with the standards for compensation under the Land Compensation Act. Even if an agreement on the amount of compensation for losses was reached in breach of the standards prescribed by the Act, it is valid unless the agreement is lawfully cancelled on the ground of mistake, etc. (see Supreme Court Decision 2012Da3517, Aug. 22, 2013). A project operator may acquire or use land, etc., as prescribed by the agreement.

Second, when a project operator fails to reach an agreement or is unable to hold consultation as above, he/she may file an application for adjudication with the competent Land Tribunal within one year from the date the project approval is publicly announced (Article 28(1)), as prescribed by Presidential Decree. In such cases, the Land Tribunal shall render adjudication on the zone and method of using the land to be expropriated or used, 2. Compensation for losses, 3. The commencement date and period of expropriation or use, etc. (Article 50(1)), as long as the adjudication does not lose its validity because the project operator fails to pay or deposit the compensation adjudicated by the competent Land Tribunal by the commencement date of expropriation or use (Article 42(1)); and the project operator shall obtain the ownership or right to use the land or goods (Article 45(1) and (2); hereinafter referred to as “acquisition by expropriation”).

As can be seen, the Land Compensation Act requires a project operator to take the procedure for acquiring land through a prior consultation, and requires the project operator to take the procedure for acquiring land by expropriation when the consultation is not reached or it is impossible to hold a consultation. However, even if the Land Tribunal rendered a adjudication of expropriation, the project operator may lose its validity by failing to pay or deposit the compensation adjudicated by the Land Tribunal by the commencement date of expropriation or use; and ② landowners, etc. may raise an objection against the adjudication of expropriation or institute an administrative litigation, and dispute whether the compensation is appropriate. In light of the legislative purpose of the Land Compensation Act (Article 1) to promote public welfare through the efficient implementation of public works and properly protect property rights, even if the Land Tribunal rendered the adjudication of expropriation, it is difficult to find the need to prohibit the consultation acquisition procedure with the substance of private contracts after the adjudication of expropriation is made.

B. Review of the reasoning of the lower judgment and the first instance judgment cited by the lower court and the evidence duly admitted by the lower court reveals the following facts.

(1) On January 18, 2013, the Defendant accepted five parcels of land, such as 3,505 square meters of forests and fields, owned by the Plaintiff (hereinafter “instant land”), for the instant public projects implemented by the head of the original Regional Construction and Management Administration, an agency affiliated with the Intervenor (hereinafter “the instant project implementer”), and rendered a ruling of acceptance that the compensation amounting to totaling KRW 976,261,750 (hereinafter “instant expropriation”). The date of expropriation was March 13, 2013 (hereinafter “instant acceptance ruling”).

(2) At the time, the project implementer of this case examined whether to file a lawsuit seeking reduction on the amount of compensation for expropriation of this case. On the other hand, the Plaintiff referred to as “the Plaintiff has a liability for delay damages worth KRW 3 million every day due to a loan obligation exceeding KRW 5 billion,” and requested the project implementer of this case to pay compensation for losses for the land of this case as soon as possible and purchase six remaining parcels adjoining the land of this case (hereinafter “the remaining land of this case”).

(3) In such circumstances, on February 18, 2013, the Plaintiff and the instant project implementer drafted each “written agreement on the acquisition of public land” with the amount of compensation in KRW 943,846,80 regarding the instant land, and each “written agreement on the acquisition of public land” with the amount of compensation in KRW 693,573,430 regarding the instant remaining land. The Plaintiff prepared and issued to the instant project implementer a written claim for compensation and a receipt stating that the same amount would be received. As to the instant land and remaining land on February 21, 2013, the ownership transfer registration was completed in the name of the Intervenor on the ground of the “acquisition of public land on February 18, 2013.” Meanwhile, along with the purport that the amount of compensation for the instant land would be reserved, stating that “the reservation of this case should be stated in excess of the amount of compensation, and the subsequent measures should be withdrawn.”

C. The above legal principles are as follows. ① The Plaintiff and the instant project operator newly prepared an agreement on acquisition of the instant land by setting the amount of compensation after the instant adjudication on expropriation was rendered, and based on which the Plaintiff completed the registration of ownership transfer; ② the Plaintiff’s reservation of the objection to the instant land in the written claim for compensation upon filing a claim for new agreed compensation amount, but the said written claim for compensation is against the document prepared by the Plaintiff. However, there is no content stating that the Plaintiff and the instant project operator reservation objection to the written agreement on acquisition jointly prepared by the Plaintiff and the instant project operator. ③ On February 18, 2013, the Plaintiff and the instant project operator entered into an agreement on acquisition of the instant land at the same time with regard to the land as well as remaining land of this case, it is sufficient to avoid the Plaintiff from receiving the compensation amount more than the date of expropriation and receiving damages for delay payment damages from financial institution loans, and even if the remaining land of this case were to be seen as having not been able to be able to be able to be able to be able to be seen as having been able to comprehensively agreed upon with the Plaintiff’s.

D. Nevertheless, the lower court rejected the Intervenor’s assertion to the effect that the instant lawsuit is unlawful, based on the circumstances as indicated in its reasoning, and furthermore, accepted the first instance judgment which rendered a decision on the merits. In so doing, the lower court erred by misapprehending the legal doctrine on the interest in the lawsuit seeking nullification of the adjudication of expropriation where the ownership of land, etc. is transferred by a separate agreement acquisition after the adjudication of expropriation, and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)