[1] The method of assessing land for the calculation of compensation in each case when the designation or alteration of specific use area, etc. is intended for the implementation of a specific public project even if the restriction under public law is a general plan restriction to achieve the purpose of restriction by itself and is not directly related to a specific urban planning project, and even if the restriction under public law is imposed on the designation or alteration of specific use area, etc. falling under general planning restriction

[2] Whether the “designation of a natural park” under the Natural Parks Act or “designation of a special purpose district according to a plan for the special purpose district in a park” falls under the “general restriction on planning” under the main sentence of Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc.

[1] Article 68(3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects provides that matters necessary for the standards for calculating the amount of compensation for losses shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. Article 23 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects delegated by the Minister of Land, Infrastructure and Transport provides that "where the public law is limited directly for the implementation of the relevant public works, the land subject to restrictions under the public law shall be appraised according to the condition of restriction: Provided, That where the restrictions under the public law directly aim at the implementation of the relevant public works, the land, the special-purpose area or special-purpose district, etc. of which has been modified for the direct purpose

Therefore, when calculating the amount of compensation for land subject to restrictions in public law, if the relevant restriction is a general planning restriction that achieves the purpose of restriction, such as the designation or alteration of a specific use area, district, or zone under the former Urban Planning Act (repealed by Article 2 of the Addenda of the National Land Planning and Utilization Act, Act No. 6655 of Feb. 4, 2002), and is not directly related to a specific urban planning project, such restriction shall be evaluated as it is. Even if the designation or alteration of a specific use area, district, zone, or zone is intended for the implementation of a specific public project, even if such restriction is not directly related to a specific urban planning project, such as the determination of a plan for the installation of a specific urban planning facility, such as a road, park, or a park, it shall be evaluated by considering the designation or alteration of a specific use area, zone,

[2] The Natural Parks Act aims at preserving and managing a park area by prescribing matters concerning the designation, conservation and management of a natural park (Article 1) and promoting the conservation and sustainable use of the natural ecosystem, nature and cultural landscape, etc. (Article 1); and where a natural park is designated as a natural park under the Natural Parks Act, the effect of preserving and managing a park area shall arise immediately by restricting construction activities, mineral extraction, reclamation, alteration of the form and quality of land, piling-up, piling-up of things, act of planting wild animals or gathering wild plants, act of gathering wild plants, act of gathering wild plants, etc. (Article 23). The park management agency shall determine and publicly announce a park plan including a park-use district plan and a park facilities plan after the designation of the natural park (Article 12 through 17). However, a park management agency shall establish a plan for the conservation and management of each park every ten years in connection with the park plan (Article 17-3) and an implementation plan for the park project (Article 2 subparagraph 9).

In full view of the legislative purpose of the Natural Parks Act, the contents and structure of the relevant provisions, “designation of a natural park” under the Natural Parks Act and “designation of a special purpose district according to a plan for the special purpose district of a park” under the same Act, barring any special circumstance where a “park facility plan” was made with the content of installing and developing specific park facilities, it constitutes “restriction on general planning” under the main sentence of Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, as it is not for the purpose of implementing a specific park facility plan,

[1] Article 68(3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 23(1) and (2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Articles 1, 2 subparag. 9, 12, 13, 14, 15, 16, 17, 17-3, 19(2), 22, and 23 of the Natural Parks Act; Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2017Du61799 Decided January 25, 2018 (Gong2018Sang, 525)

Plaintiff 1 and 20 others (Law Firm Bae, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Ulsan Metropolitan City Ulsan District Court Decision 2005Na14488 decided May 2, 200

Busan High Court Decision 2018Nu22548 decided January 23, 2019

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Case summary and key issue

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

1) On December 2, 1983, the head of Ulsan-do, the head of Ulsan-gun, the head of the Si/Gun designated and publicly announced the 11.6mm2 as the Ulsan-gun, the Ulsan-gun, the △△△△△△△, and the Gun Park in the Ulsan-do pursuant to the Natural Parks Act, as the “Gun Park” (Public Notice No. 131 of the Ulsan-gun), and on September 7, 1987, the head of the Si/Gun decided and publicly announced the “Master-gu Gun Park Master Plan”, which designates the special purpose district (collective facility district, village district, natural environment district, and nature conservation district) (Public Notice No. 71

2) On May 20, 2015, the head of Ulsan-gu determined and publicly notified the “Gun Park Planning (Modification)” (No. 2015-95 Notice No. 2015 of Ulsan-Gun), which is to install a multi-purpose plaza and playground (hereinafter “instant facilities”) in the area of the Gun Park of 10,929 square meters in the area of the Gun Park of 10,000,000, the head of Ulsan-gu determined and publicly notified the implementation plan of the Gun Park Park (the name of the project: the multi-purpose plaza and playground development project; the development project of the instant facilities; the area of the instant facilities was modified several times in the area of the instant facilities).

3) In order to implement the instant facility development project, the head of Ulsan-gu filed an application for the adjudication of expropriation with the Plaintiffs, the owners of each of the instant land located within the project zone, but did not reach an agreement. Accordingly, the adjudication of expropriation on April 27, 2017 at the local Land Expropriation Committee of Ulsan Metropolitan City and the Central Land Expropriation Committee on October 26, 2017 on each of the instant land was determined on December 2, 1983 as well as on September 7, 1987 on the basis of the appraised amount of compensation for each of the instant land under the condition that the planning restriction is imposed according to the designation of the Do Park Park Park and the designation of the Gun Park Special-Purpose District of the Do Park.

B. The key issue of the instant case is whether the limitation of planning on each of the instant lands following the designation of △△△ Gun Park on December 2, 1983 and the designation of the special purpose district for △△ Gun Park on September 7, 1987 should be calculated by considering the state where there is no restriction on the relevant public works, i.e., the public law restrictions, namely, whether the restriction on planning should be calculated by considering the state where it falls under the restriction on individual planning, or whether the compensation should be calculated in accordance with the state where it falls under the restriction on general planning as stipulated in the main sentence of Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule

2. Relevant legal principles

(a) Standards for calculating compensation for losses;

Article 68(3) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that matters necessary for the standards for calculating the amount of compensation for loss shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. Article 23 of the Enforcement Rule of the Land Compensation Act following delegation provides that “Where the public law is limited directly for the implementation of the relevant public works, the land subject to restrictions shall be appraised according to the state of restriction: Provided, That where the restrictions in the public law are directly for the implementation of the relevant public works, the land shall be appraised according to the state of restrictions in which there is no restrictions” (Article 1) and “the land, the special-purpose area or special-purpose district of which has been modified for the direct purpose

Therefore, when calculating the amount of compensation for land subject to restrictions in public law, if the relevant restriction is a general planning restriction that achieves the purpose of restriction, such as the designation or alteration of a specific use area, district, or zone under the former Urban Planning Act (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6555, Feb. 4, 2002), and is not directly related to a specific urban planning project, such restriction shall be evaluated as it is. Even if the designation or alteration of a specific use area, district, or zone is intended for the implementation of a specific public project, such designation or alteration of a specific use area, zone, zone, or zone is not subject to restrictions, such restriction shall be evaluated as it is, and even if it is not directly related to a specific urban planning project, such as the determination of a plan for the installation of a specific urban planning facility, such as a road, park, etc. (see Supreme Court Decision 2017Du61799, Jan. 25, 2018

(b) Legal nature of designation of natural parks and special purpose districts under the Natural Parks Act;

The purpose of the Natural Parks Act is to preserve and manage a park area by prescribing matters concerning the designation, conservation and management of a natural park (Article 1), thereby promoting the conservation and sustainable utilization of the natural ecosystem, nature and cultural landscape, etc. (Article 1); and if a natural park is designated as a natural park under the Natural Parks Act, the effect of preserving and managing a park area is immediately occurred by restricting construction activities, mineral extraction, reclamation, alteration of the form and quality of land, piling-up, piling-up of things, act of planting wild animals, act of cutting-up, act of gathering trees, act of gathering wild plants or wild plants, etc. (Article 23). A park management agency shall determine and publicly announce a park plan including a park-use district plan and park facilities plan after the designation of the natural park (Article 12 through 17). However, a park management agency shall establish a park conservation and management plan for each park every ten years in connection with the park plan (Article 17-3), but a park project that constructs and constructs park facilities (Article 2 subparagraph 9).

In full view of the legislative purpose of the Natural Parks Act, the contents and structure of the relevant provisions, “designation of a natural park” under the Natural Parks Act and “designation of a special purpose district according to a plan for the special purpose district of a park” under the same Act, barring any special circumstance that a “park facility plan” was made with the content of installing and constructing specific park facilities, it shall not be deemed that it constitutes a “general restriction on planning” under the main sentence of Article 23(1) of the Enforcement Rule of the Land Compensation Act, as it does not directly aim at implementing a specific park project determined by the

3. Determination

A. Examining the facts as seen earlier in light of the aforementioned legal principles, the “park facility plan” was not formulated and decided on December 2, 1983, 198, and at the same time, on September 7, 1987, to build and build specific park facilities on each of the instant land at the same time as the designation of the Gun Park Park, and only was established and decided on May 20, 2015, where approximately 28 years passed since the plan was formulated and decided on May 20, 2015 for the installation and creation of the instant facilities, which was part of the entire area, not the entire area of the Gun Park, and was limited to the part of the area of the Gun Park, and thus, the designation of the Gun Park and Gun Park on December 2, 1983 and on September 7, 1987, shall be deemed to fall under the “general planning restriction” rather than the direct purpose of implementing the instant facility development project.

B. Nevertheless, the lower court determined on December 2, 1983, 1983, that restrictions on planning on each of the instant land in accordance with the designation of △△△ Gun Park and special purpose districts for Gun parks on September 7, 1987 constituted individual planning restrictions under the proviso of Article 23(1) of the Enforcement Rule of the Land Compensation Act. In so determining, the lower court erred by misapprehending the legal doctrine on natural parks under Article 23 of the Enforcement Rule of the Land Compensation Act and the Natural Parks Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out is with merit (Supreme Court Decisions 2006Du11507 Decided July 12, 2007; 2012Du1020 Decided May 24, 2012). The case is subject to urban planning decisions changing the specific use areas of the relevant land from a residential area for the purpose of directly constructing and developing a park as an urban planning facility under the former Urban Planning Act, and thus, it is inappropriate to be cited).

4. 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 Kwon Soon-il (Presiding Justice)