[1] Damage (i.e., the amount equivalent to the rent for the airspace over which the use of the electricity is restricted) caused to the landowner by installing the power transmission line in the land space

[2] In a case where the Korea Electric Power Corporation established a power transmission line on the land owned by the Korea Electric Power Corporation without the landowner’s consent or the right to use, and the Korea Electric Power Corporation sought damages against the Corporation on the ground that it failed to perform its removal obligation even though the judgment ordering the removal of the power transmission line became final and conclusive, the case holding that the Corporation’s liability to pay consolation money for mental distress suffered by

[1] Where a land owned by another person is occupied without legal title, the damages to be compensated by the landowner are limited to the damages that the landowner is unable to use, i.e., the damages equivalent to the rent, barring special circumstances, and the damages incurred to the landowner by installing transmission lines in the land space are also equivalent to the rent for the portion above the airspace where the use of the land is restricted, unless there are special circumstances.

[2] In a case where the Korea Electric Power Corporation established a power transmission line on the land owned by the Korea Electric Power Corporation without the landowner’s consent or the right to use and did not perform the removal obligation even though the judgment ordering the removal of the power transmission line became final, the case holding that, in a case where the Korea Electric Power Corporation sought damages against the Corporation on the ground that the installation of the power transmission line did not recognize that the damage was caused by the installation of the power transmission line, and that it cannot be deemed that the damage was caused to the Party A, since the Corporation deposited the compensation for the above ground space after the power transmission line was paid according to the use decision, it cannot be deemed that the damage was caused to the Party A’s property, in full view of various circumstances, such as the time of acquisition of the land, land use or installation of the power transmission line, circumstances where the Party A was final and conclusive, and the Corporation’s attitude was found to have suffered serious mental damage due to the installation of the power transmission line, and the Corporation also knew or could have known the aforementioned circumstances.

[1] Articles 393, 750, and 763 of the Civil Act / [2] Articles 393, 750, 751, and 763 of the Civil Act

[1] Supreme Court Decision 2003Da4068 delivered on September 26, 2003, Supreme Court Decision 2003Da5498 Delivered on March 25, 2005

Plaintiff (Law Firm Ho, Attorneys Tra-ho et al., Counsel for plaintiff)

Korea Electric Power Corporation (Attorney Lee Jae-tae, Counsel for defendant-appellee)

November 4, 2011

1. The defendant shall pay to the plaintiff 10 million won with 5% interest per annum from June 25, 201 to November 25, 2011, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

With respect to the Plaintiff KRW 100,000,000 and KRW 20,000,100 among them, the Defendant shall pay to the Plaintiff 79,99,900 with an annual amount of 20% from the day following the delivery of a copy of the complaint of this case, and with respect to KRW 79,99,90,00 with regard to the delivery of a copy of the written application for modification

1. Facts of recognition;

A. Acquisition of real estate by the plaintiff

On March 10, 1992, the Plaintiff completed the registration of ownership transfer for each real estate, as described in the Seoyang-gu Seoul Metropolitan Government Mayang-gu Mayang-gu 420-5 Mad-5 575 m2 (hereinafter “instant land”) on February 28, 1992.

본문내 포함된 표 ？ 등기일자 등기원인 대상 부동산 1 1991. 2. 1. 1990. 7. 20. 매매 고양시 덕양구 대자동 420 대 283㎡ 2 〃 〃 같은 동 420 지상 2층 주택 및 근린생활시설 3 〃 〃 같은 동 420-6 도로 31㎡ 4 1992. 3. 10. 1992. 2. 28. 매매 같은 동 420-5 답 575㎡ 5 〃 〃 같은 동 421-4 답 69㎡ 6 1997. 12. 29. 1997. 11. 20. 매매 같은 동 420-2 대 219㎡ 7 〃 〃 같은 동 420-2 지상 단층주택 8 〃 〃 같은 동 420-7 전 423㎡ 9 〃 〃 같은 동 420-8 전 92㎡ 10 2002. 11. 7. 2002. 10. 25. 매매 같은 동 420-4 대 53㎡

B. Installation of transmission lines by the Defendant

The Defendant, around 193, installed and managed the power transmission line (hereinafter “the transmission line of this case”) on the part of the line connecting two points (A), 3, and 4-2 of the attached drawing Nos. 1, 3-4 on the land of this case, and the part (B), 5, and 6-2 of the line connecting two points (C) of the attached drawing Nos. 154kV on the land of this case. While installing the power transmission line of this case, the Defendant did not obtain the consent of the Plaintiff, the owner of the land of this case, or the right to use the land (hereinafter “the instant transmission line”) on the land below the transmission line of this case.

C. Lawsuits against the removal of transmission lines by the plaintiff and the defendant

(1) On March 31, 2008, the Plaintiff filed a lawsuit against the Defendant for the removal of the electric transmission lines of this case against the Defendant, Janyang Branch Court 2008Gahap2418. The Defendant asserted the abuse of rights, but the above court rendered a judgment citing the Plaintiff’s claim on November 26, 2008 on the sole ground that the electric transmission lines of this case function as public interest and it is difficult to change the passage area. Although the Defendant appealed with Seoul High Court 2009Na787, it was sentenced to the dismissal of appeal on October 22, 2009, the judgment became final and conclusive by dismissal of the Defendant’s appeal on January 28, 2010.

(2) Upon the above final judgment on February 5, 2010 (hereinafter “the final judgment in this case”), the Plaintiff applied for alternative enforcement with regard to the removal of the power transmission lines to the Jinyang District Court 2010 Maga-Ma196. However, the above court dismissed the Plaintiff’s application on March 23, 2010, and the following reasons are as follows: “The power transmission line of this case intended to be replaced by the Plaintiff is part of the power transmission line installed in the Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-gu Mayang-do. Therefore, the Defendant’s removal of the instant power transmission line cannot be deemed as an act exclusive to the Defendant’s good faith.”

D. Determination of use and acquisition of superficies by the defendant

(1) Upon the filing of the instant lawsuit, the Defendant filed an application for a ruling on the use of the land located below the instant transmission line. On June 10, 201, the Gyeonggi-do Regional Land Tribunal rendered a ruling on the use of the land located below the instant transmission line. The Gyeonggi-do Regional Land Tribunal set the usage portion as “from 23m to 63m,” and the period of use as “the period during which electric structures exist” and the starting date of the use as “within July 10, 201” and “20,000,430 won.” The said compensation for losses was determined as “20,000,430 won” and the compensation for losses was not determined by the three-dimensional rate for the use of the said land, as prescribed in Article 70(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Projects Act”) and Article 31(1) of the Enforcement Rule of the same Act. The Plaintiff did not raise any objection against the use of the said land.

(2) On July 1, 2011, the Defendant deposited the deposit for payment with the Plaintiff, the deposited amount of KRW 19,120,420, and the reasons for deposit, stating that “The Plaintiff, the deposited amount of KRW 20,000,430 due to the use ruling was actually offered to the Plaintiff, but the Plaintiff was refused to receive the compensation. Therefore, the Defendant deposited the money after deducting KRW 880,010,010 from the withholding amount of the income tax.”

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 9, Gap evidence 2 through 5, Eul evidence 2, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Defendant established the power transmission line on the instant land without obtaining the consent of the Plaintiff, who is the owner of the instant land or obtaining the title thereto, and the Defendant’s obligation to remove was determined in accordance with the court’s ruling, but did not remove the power transmission line until now. The Plaintiff suffered damages that the market price of the instant land lower than KRW 20,969,760 due to the Defendant’s tort, and accordingly suffered mental distress. Accordingly, the Defendant is obliged to compensate for KRW 20,969,760 as property damages suffered by the Plaintiff, and KRW 79,030,242 as compensation for damages incurred by the Plaintiff.

B. Determination

(1) Whether property damage is recognized

In a case where any land owned by another person is occupied without legal title, the damage that the landowner is liable to compensate for is limited to the damage that the landowner becomes unable to use, i.e., the damage equivalent to the rent, and the damage that is incurred to the landowner by installing a transmission line in the space of the land is also the amount equivalent to the rent for the area over which the use of the land is restricted, except in extenuating circumstances (see Supreme Court Decisions 2003Da4068, Sept. 26, 2003; 2003Da5498, Mar. 25, 2005).

We examine whether the Defendant incurred damages exceeding the amount equivalent to the rent of the instant land by installing the instant power transmission line on the instant land.

As shown in the Plaintiff’s assertion, there was the result of the Nonparty’s appraisal, which assessed the decline in the value of the instant land due to the power transmission line at KRW 20,969,760. However, according to the above appraisal result, it is deemed that the decline in the market value of the instant land is the appraised value due to the de facto permanent use of the portion of the land which was not the power transmission line, and in calculating the permanent usage fee, it is determined by the method of “reasonable rate per unit area of the relevant land x the modified rate x the undivided area x the undivided area (divided area)” pursuant to the provisions of Articles 6(1) and 7(3) of the Guidelines on Compensation for Loss Evaluation of the Land’s Use of the portion of the land established and implemented by the Korea Certified Appraisers Association. In light of the contents of the appraisal result, the amount equivalent to the appraisal rate per unit area of the instant land and the amount equivalent to the amount equivalent to the Plaintiff’s damages due to the installation of the said land cannot be recognized, as the result of such appraisal.

On the other hand, on June 10, 201, the Gyeonggi-do Regional Land Expropriation Committee decided to use compensation of 237 square meters for the land of this case, which was 237 square meters prior to the transmission line of this case among the land of this case. The above compensation for losses was finalized at that time. Pursuant to the Public Works Act, the above compensation for losses is a royalty for the actual permanent use of the ground space where the transmission line of this case among the land of this case is passing through the transmission line under the Public Works Act, and was calculated by calculating the three-dimensional low-level utilization rate based on the degree that the use of the above space may interfere with the use of the land, and then multiplying it by the price of the above land, and the Defendant deposited the payment of compensation for the payment of compensation under the ruling of use on July 1, 2011

As such, it cannot be deemed that the Defendant incurred property damage on the ground that the Plaintiff was unable to use the above ground space by depositing the compensation for the ground space after the transmission line of the instant land. Therefore, the Plaintiff’s above assertion is without merit.

(2) Whether to recognize consolation money

(A) Facts of recognition

① Before the instant transmission line is installed, the Plaintiff purchased the instant land and the instant seven lots of land adjacent thereto and three lots of houses located on its ground. The instant land was classified as a paddy field, but was actually used as a marina, etc. between the said housing.

② At around 1993, the Defendant, without any consultation with the Plaintiff, obtained a right to use the instant land with the Plaintiff’s consent for about 15 years after installing the instant transmission line, or did not follow the procedures for obtaining a right to use the instant land pursuant to relevant Acts and subordinate statutes, and did not pay the Plaintiff the price for the use of the land at all. Accordingly, as seen earlier on March 31, 2008, the Plaintiff filed a lawsuit seeking the removal of the instant transmission line, and the judgment ordering the removal of the instant transmission line became final and conclusive on January 28, 2010.

(3) However, the Defendant filed the instant lawsuit, which was in the absence of the removal of the power transmission line, and acquired the right to use the public space of the instant land only by depositing compensation pursuant to the above usage ruling on July 1, 2011. Meanwhile, prior to the above usage ruling, the Defendant did not return to the Plaintiff unjust enrichment equivalent to the rent arising from the use of the instant land, but expressed that he/she had the intention to return it at any time.

④ Since the power transmission line is passing through the center of the instant land, there are many difficulties for the Plaintiff to use the instant land as a marina. The Plaintiff resided in the instant land on the ground of 420 square meters large and 283 square meters adjacent to the instant land, and the Plaintiff moved to another place due to concerns over the occurrence of health problems to himself/herself and his/her children due to the power transmission line, and thereafter, the said housing is still in progress as it does not become leased.

[Reasons for Recognition] Evidence No. 1-9, Evidence No. 2-5, Evidence No. 2-5, and the purport of the whole pleadings

(B) Determination

In general, in a case where a property right has been infringed by a tort of another person, the mental suffering is also deemed to have been restored by the compensation for such property damage. Thus, in a case where a property damage has occurred which cannot be recovered by the compensation for property damage, this is a damage due to special circumstances, and the perpetrator can claim consolation money for such damage only when he knew or could have known such circumstances (see Supreme Court Decision 2001Da82507, Mar. 18, 2004, etc.).

Although the Plaintiff used the instant land as a housing unit, without any title, the Defendant did not acquire the right to use the instant land at the center of the instant land for a long time after installing the instant transmission line, or did not take procedures for obtaining the right to use the instant land pursuant to relevant Acts and subordinate statutes, and did not pay the Plaintiff the price for the use of the land at all. Thereafter, the Plaintiff had been subject to a favorable judgment by filing a lawsuit seeking the removal of the instant transmission line, and the Plaintiff may expect the removal of the instant transmission line due to the final and conclusive judgment. However, the Defendant continued to use the instant land without performing the duty to remove the instant transmission line without any discretion. Upon filing the instant lawsuit, the Defendant acquired the right to use the instant land as a public space upon the use ruling. Considering that the Plaintiff’s acquisition time of the instant land, the installation time of the instant land, the developments leading up to the Plaintiff’s final and conclusive judgment, and the Defendant’s attitude, etc., the Plaintiff did not have any mental suffering to the Plaintiff at the time of the instant construction of the instant land, and thus, the Plaintiff’s emotional suffering from the Plaintiff’s damage.

When considering various circumstances, such as the location where the power transmission line passes the land of this case, the use of the land of this case by the plaintiff, the period of occupation without permission of the defendant, and the attitude of the defendant, it is reasonable to determine the amount of consolation money as KRW 10 million.

Therefore, the Defendant is obliged to pay damages for delay at each rate of 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, as it is obvious that the Defendant is the day following the delivery of a copy of the application for modification of the purport of the instant claim for damages to the Plaintiff from June 25, 2011 to November 25, 201, which is the date of this decision.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeon Jong-jin (Presiding Judge)