See Attached List of Plaintiffs (Law Firm Roon, Attorney Park Sang-hoon, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation and one other (Law Firm Barun, Attorneys Park Jong-ho, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2008Guhap9936 Decided September 16, 2009

March 30, 2010

1. The judgment of the first instance, including the Plaintiff’s claim changed in the trial, shall be modified as follows:

The defendants shall pay to each of the plaintiffs the amount of money in the separate sheet of the compensation in attached Form 2, the amount calculated by applying the rate of 5% per annum from October 22, 2008 to September 16, 2009, and 20% per annum from the next day to the day of full payment.

2. Of the total litigation costs, 50% is borne by the Plaintiffs, and the remainder 50% is borne by the Defendants.

3. The portion paid with the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The same as the part of the monetary payment under Paragraph 1 of the Disposition (the plaintiff changed the claim in the trial).

2. Purport of appeal

The judgment of the court of first instance is modified as stated in the purport of the claim (the plaintiff did not appeal against the part against the judgment of the court of first instance, but partially reduced or extended the claim while filing an appeal, and the incidental appeal shall be deemed to have been filed to the extent that the claim has been expanded).

The part of the judgment of the court of first instance against the Defendants shall be revoked, and all of the plaintiffs' claims corresponding thereto shall be dismissed.

1. Details of ruling;

(a) Approval for and announcement of projects;

- Free economic zone development projects (In Incheon Free Economic Zone 22th>

- Notice of Ministry of Finance and Economy No. 2006-53 of December 5, 2006

B. Project operator: Defendants

(c) Adjudication on expropriation by the Central Land Expropriation Committee on August 28, 2008;

- Persons subject to expropriation or transfer: as shown in the separate sheet of obstacles (hereinafter referred to as “instant obstacles”), the obstacles owned by the plaintiffs other than those of Nonparty 2, 3, and 4 are as follows.

- Commencement date of expropriation: October 21, 2008

- Compensation: as shown in the separate sheet of compensation “amount of adjudication on expropriation”;

- An appraisal corporation: An appraisal corporation and an appraisal corporation of the country of sight (hereinafter referred to as “appraisal”) for the plaintiffs other than plaintiffs 7, 13, and 22

D. Ruling by the Central Land Tribunal on February 26, 2009 on Plaintiffs 7, 13, and 22 (hereinafter “Plaintiff 7”)

- Increase in the amount of compensation for the defects filed by Plaintiffs 7 et al. as indicated in the separate sheet on the compensation list;

- An appraisal corporation: An appraisal corporation and one appraisal corporation (hereinafter “adjudication appraiser”) for plaintiffs 7 et al.

[Reasons for Recognition] Facts without dispute, entry of Eul Nos. 2, 3, 5, and 8 (including paper numbers), the purport of the whole pleadings

2. Determination on this safety defense

A. Main Safety Defenses by the Defendants

At the time of the filing of the instant lawsuit, the Plaintiffs asserted that the Defendants were obligated to pay additional charges on the “compensation for adjudication” through a preparatory document dated April 28, 2009, after the lapse of the appeal period for the instant judgment. Moreover, Plaintiff 7, etc. did not dispute the additional charges on the “compensation for adjudication” at the time of filing an objection against the adjudication on expropriation. Accordingly, the instant lawsuit on the portion of the claim for additional charges on the “compensation for adjudication” was unlawful, as it failed to comply with the filing period.

B. Determination

(1) The additional charges for delay have the nature of the statutory damages for delay on the compensation for expropriation. Therefore, the appeal for the additional charges for delay is reasonable in accordance with the procedure for objection to the compensation for expropriation, and Article 14 of the Enforcement Decree of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that the additional charges for delay shall be determined as the adjudication for expropriation along with the compensation for expropriation. Therefore, the appeal for the additional charges for delay shall be subject to the lawsuit on the increase of the compensation for expropriation (see Supreme Court Decision 97Da31175, Oct. 24, 1997). Therefore, as long as a lawsuit on the increase or decrease of the compensation set forth in the adjudication is brought within the filing period, the additional charges for delay having the nature of the statutory damages for delay on the compensation may be brought through the modification of the purport of the claim

However, it is evident in the record that the instant lawsuit seeking an increase in the amount of compensation determined by the adjudication was filed on October 27, 2008, within 60 days from the date of delivery of the written adjudication on acceptance (the adjudication on the objection against Plaintiff 7, etc. was subsequently filed). Thus, even if the Plaintiffs thereafter filed a claim for additional charges on the amount of compensation for adjudication in the instant litigation procedure, this part of the lawsuit cannot be deemed to have lapsed (it is difficult to view that the Plaintiffs did not claim the additional charges at the time of filing the original lawsuit in light of the fact that the ground for additional charges on the amount of compensation for adjudication is clearly stated in the grounds for filing the petition).

(2) In addition, barring any special circumstance, an objection shall be effective against the entire adjudication of expropriation, and in the administrative litigation on land expropriation, the defect of the adjudication of expropriation which is not a ground for objection as well as the unique illegal cause of the adjudication of expropriation can also be asserted (see Supreme Court Decision 93Nu20627 delivered on September 15, 195, etc.). Thus, even if the plaintiff 7 et al. did not dispute the late portion of the additional dues at the time of filing an objection against the adjudication of expropriation, additional dues may be claimed by the lawsuit of this case seeking an increase or decrease of compensation.

(3) Therefore, the Defendants’ assertion that a lawsuit against the late payment penalty is unlawful is without merit.

3. Judgment on the merits

A. Summary of the plaintiffs' assertion

(1) The adjudication appraiser did not separately evaluate the site and buildings of the instant obstacles, and the appraised value thereof is also insufficient.

(2) The Defendants filed an application for adjudication on September 7, 2007 with the Plaintiffs, but filed an application for adjudication on January 29, 2008, past 60 days from that date. Therefore, the Defendants should pay additional charges for delay under Article 30(3) of the Public Works Act to the Plaintiffs.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination on the first argument

The main text of Article 20(1) of the Enforcement Rule of the Public Works Act provides, “The land to be expropriated and the buildings thereof shall be evaluated respectively in principle.” However, the proviso of the same Article provides, “where a building is traded with the land, or there is a case or practice that the land is traded together with the land, the building

In full view of the overall purport of the pleadings in Eul evidence Nos. 3 and 8 (including additional numbers) and the result of the appraisal commission (including the result of fact inquiry; hereinafter "court appraisal") by the court of first instance to non-party 1 (non-party to the judgment), the adjudication appraiser and the court appraiser shall, in assessing the obstacles of this case, take into account the factors of price formation and the normal transaction price of similar goods within the same right to receive benefits in assessing the obstacles of this case, and, in the case of a condominium building, taking into account the general practices in which land and buildings are traded together with the land and buildings, the fact that the obstacles of this case, which are an aggregate building, are not divided into the site and buildings pursuant to the proviso of Article 20 (1) of the Enforcement Rule of the Public Works Act, can be acknowledged. Accordingly, there is no illegality in the method of appraisal by the adjudication appraiser and the court appraiser (the defendant merely stated the method of appraisal of the obstacles of this case as abstractly, and did not reveal the factors in which the price calculation was taken into account.

Therefore, this Court should adopt a court appraisal that appears to reflect the present situation of the obstacles of this case more properly and calculate compensation.

According to the court’s appraisal, the reasonable compensation for the obstacles of this case is the same as the “court appraisal amount” stated in the separate sheet of compensation. Therefore, the Defendants are obligated to pay each of the Plaintiffs the relevant money as stated in the “Difference of compensation” column of the same list, which is the difference between the reasonable compensation and the adjudication compensation, and the compensation for delay.

(2) Judgment on the second argument

㈎ 수용에 관한 협의기간이 정하여져 있더라도 협의의 성립가능성 없음이 명백해졌을 때와 같은 경우에는 굳이 협의기간이 종료될 때까지 기다리게 하여야 할 필요성도 없는 것이므로 협의기간 종료 전이라도 사업시행자에게 재결신청의 청구를 할 수 있는 것으로 보아야 하며, 다만 그와 같은 경우 공익사업법 제30조 제2항 에 의한 60일의 기간은 협의기간 만료일로부터 기산하여야 한다( 대법원 1993. 7. 13. 선고 93누2902 판결 참조).

㈏ 갑 제28호증의 1 내지 3, 을 제4호증의 1, 을 제6호증의 각 기재에 변론 전체의 취지를 종합하면, ① 피고들은 2007. 8. 6. 원고들에게 협의기간을 2007. 8. 8.부터 2007. 9. 7.까지로 정하여 이 사건 지장물에 대한 손실보상협의를 요청한 사실, ② 원고들은 2007. 9. 7. 공익사업법 제30조 제1항 , 같은 법 시행령 제14조 제1항 에 따라 피고들에게 이 사건 지장물에 대하여 재결을 신청할 것을 청구한 사실, ③ 피고들은 위 청구를 받고도 2008. 1. 29.에야 중앙토지수용위원회에 재결을 신청한 사실을 인정할 수 있으므로, 피고들은 원고들에게 공익사업법 제30조 제3항 에 따라 수용재결보상금에 대하여 위 협의기간 만료일로부터 60일이 경과한 날인 2007. 11. 7.부터 수용재결신청일인 2008. 1. 29.까지 소송촉진 등에 관한 특례법이 정한 연 20%의 비율로 계산한 지연가산금(금액은 별지 보상금 목록 ‘지연가산금 계산결과’란 기재와 같다)을 각 지급할 의무가 있다.

㈐ 이에 대하여 피고들은, 자신들이 위 최초 협의기간을 2007. 9. 5. ‘2007. 9. 10.부터 2007. 10. 12.까지’, 2007. 10. 12. 다시 ‘2007. 10. 15.부터 2007. 11. 2.까지’, 2007. 11. 1. 최종적으로 ‘2007. 11. 5.부터 2007. 11. 20.까지’로 순차 적법하게 연장한 뒤, 위 최종 협의기간 만료일인 2007. 11. 20.부터 60일 이내에 재결신청을 한 이상 재결신청 지연가산금을 지급할 의무가 없다고 주장한다.

However, inasmuch as the Plaintiffs filed an application for adjudication with the Defendants for the failure to reach an agreement subsequent to a public announcement of project approval, even if the Defendants were to arbitrarily extend the consultation period, the Defendants are obligated to file an application for adjudication within 60 days from September 7, 2007, which was the expiration date of the initial consultation period, as the filing date of the application for adjudication, and to pay additional charges for delay from the expiration date of the said 60-day period if the Defendants failed to do so (i.e., the project implementer may continue to postpone the application for adjudication by extending the consultation period in several ways, and the purport of Article 30(2) and (3) of the Public Works Act is dismissed).

Therefore, the above assertion by the Defendants is without merit.

(3) Sub-decisions

The defendants are obligated to pay each of the plaintiffs the corresponding amount stated in the separate sheet of compensation (the corresponding amount stated in the "Difference of compensation" in the same list) and the corresponding amount stated in the "Difference of compensation" in the same list shall be the sum of the corresponding amount stated in the corresponding amount, and the corresponding amount stated in the "Difference of compensation" in the same list. As to the corresponding amount, it is reasonable to dispute over the existence and scope of the defendants' obligation from October 22, 2008 on the date following the date of expropriation to September 16, 2009, which is the date of adjudication of the first instance court, to pay 5% per annum as prescribed by the Civil Act, and damages for delay calculated at the rate of 20% per annum as prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following

4. Conclusion

The plaintiffs' claims of this case, including the claims changed in the trial court, should be accepted because they have reasonable grounds, and the judgment of the court of first instance differs from this conclusion, so it is so decided as per Disposition by changing the judgment of the court of first instance.

[Attachment]

Judges Yoon Jae-ap (Presiding Judge) (Presiding Justice) Kim Jong-sik