[1] The legal nature of the project approval and the requirements for the project approval institution to obtain the project approval under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] The method of examining whether the disposition, such as project approval for the preservation of cultural heritage, is beyond and abused discretion, and the matters to be specifically considered

[3] Whether the head of a local government designated as a management organization of State-designated cultural heritage can expropriate State-designated cultural heritage or land within its protection zone pursuant to Article 83(1) of the Cultural Heritage Protection Act and the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor

[4] Whether the project operator is required to have the intent and ability to perform the pertinent public project (affirmative)

[1] The project approval is determined as a project to expropriate or use land, etc. for a public project and form a specific right of expropriation on the condition that the project executor should go through a certain procedure thereafter. Therefore, even if the project falls under a project that can expropriate or use land, etc. outside the form of land, the project approval agency should fairly compare and bridge the interests of the persons related to the project approval as to the contents and method of the project not only between the public interest and private interest, but also between the public interest and private interest, and the comparison and bridge must conform to the principle of proportionality.

[2] In order to protect cultural heritage, the Cultural Heritage Protection Act grants the competent administrative agency the authority to choose a method less than the right to expropriate, such as prohibiting or restricting certain acts, installing facilities, removing obstacles, and taking urgent measures necessary for preserving cultural heritage. However, cultural heritage refers to artificially or naturally formed national, ethnic, or world heritage of outstanding historic, artistic, academic, or scenic value (Article 2(1) of the Cultural Heritage Protection Act). The basic principle of preserving, managing, and utilizing cultural heritage is to maintain its original form (Article 3 of the Cultural Heritage Protection Act). In addition, cultural heritage is often difficult to recover once it is damaged, and there is a characteristic that requires enormous costs and time even if it is possible to recover.

When examining whether the disposition, such as approval of a project for the preservation of cultural heritage, is deviates from or abused by discretionary authority, such determination shall be made with careful consideration of the contents and purport of the Cultural Heritage Protection Act as above, characteristics of cultural heritage, degree of infringement of people's property rights due to

Specifically, the following should be taken into account: ① the Constitution provides that “The State shall endeavor to inherit and develop traditional culture and to promote national culture” (Article 9); ② the Cultural Heritage Protection Act specifically sets the responsibilities of the State and local governments for the preservation and management of cultural heritage based on such constitutional ideology; and ② the State and local governments shall also actively cooperate with the policies of the State and local governments for the preservation and management of cultural heritage (Article 4); ③ The professional and technical judgments issued by the administrative agencies as prescribed by relevant Acts and subordinate statutes, such as the Cultural Heritage Protection Act, in order to pursue the objectives of preserving the cultural, artistic, academic, or scenic value of cultural heritage and the preservation of its original form.

[3] Article 83(1) of the Cultural Heritage Protection Act provides that "the Administrator of the Cultural Heritage Administration or the head of a local government may expropriate or use land, buildings, standing trees, bamboo, and other structures located within designated cultural heritage or its protection zone pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Land Compensation Act"), if necessary for the preservation and management of cultural heritage."

Meanwhile, the State shall establish and implement comprehensive policies for the preservation, management, and utilization of cultural heritage; local governments shall establish and implement policies for the preservation, management, and utilization of cultural heritage, taking into account national policies and regional characteristics (Article 4 of the Cultural Heritage Protection Act); the Administrator of the Cultural Heritage Administration may designate local governments, etc. as management organizations for the management of State-designated cultural heritage (Article 34 of the Cultural Heritage Protection Act); and the head of local governments, if deemed necessary for the management and protection of State-designated cultural heritage and historic and cultural environment preservation areas, may order the prohibition or restriction of certain acts, the removal of facilities, obstacles, and emergency measures necessary for the preservation of cultural heritage (Article 42(1)

As such, the Cultural Heritage Protection Act imposes not only City/Do-designated cultural heritage but also City/Do-designated cultural heritage, and also imposes certain authority or responsibilities on the State-designated cultural heritage, and the Cultural Heritage Protection Act does not impose restrictions on the State-designated cultural heritage’s right to expropriate land, etc. under Article 83(1) of the Cultural Heritage Protection Act, the head of a local government designated as a management organization for State-designated cultural heritage may expropriate State-designated

[4] Since the right of expropriation can not be granted to a person who has no intention or ability to realize the public interest by performing a public project to deprive another person of his/her property right by public authority or forced deprivation of another person's property right, the project operator must be deemed to have the intent and ability to perform the relevant public project.

[1] Article 20 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 9 of the Constitution of the Republic of Korea; Articles 2(1), 3, and 4 of the Cultural Heritage Protection Act / [3] Articles 4, 34, 42(1), and 83(1) of the Cultural Heritage Protection Act / [4] Article 20 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] [4] Supreme Court Decision 2009Du1051 Decided January 27, 201 (Gong2011Sang, 448) / [1] Supreme Court Decision 95Nu4889 Decided December 5, 1995 (Gong196Sang, 279) Supreme Court Decision 2004Du14670 Decided April 29, 2005 (Gong2005Sang, 856) / [2] Supreme Court Decision 99Du264 Decided October 27, 200 (Gong200Ha, 2441), Supreme Court Decision 2004Du10661 Decided January 28, 2005 (Gong205Sang, 418)

Suwon Industrial Co., Ltd. (Attorney Lee Yong-soo et al., Counsel for the defendant-appellant)

The Minister of Land, Infrastructure and Transport

The Administrator of the Cultural Heritage Administration and two others (Attorney Jeong-ju et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2017Nu10454 decided November 2, 2017

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

1. Whether the project approval of the instant case violates the public interest, necessity, and proportional principle

A. The project approval is determined as a project to expropriate or use land, etc. for a public project and form a specific right of expropriation under the condition that the project executor should take a certain procedure thereafter. Therefore, even if the project falls under a project that can expropriate or use land, etc. outside the form of land, etc., the project approval agency should fairly compare and bridge the interests of the persons related to the project approval as to the contents and method of the project not only between the public interest and private interest, but also between the public interest and private interest, and the comparison and bridge must conform to the principle of proportionality (see Supreme Court Decisions 95Nu489, Dec. 5, 1995; 2004Du14670, Apr. 29, 2005, etc.).

The Cultural Heritage Protection Act grants the competent administrative agency the authority to choose a method less than the right to expropriate, such as prohibition of or restriction on certain acts, installation of facilities, removal of obstacles, and urgent measures necessary for the preservation of cultural heritage. However, cultural heritage is artificially or naturally formed and of outstanding historic, artistic, academic, or scenic value (Article 2(1) of the Cultural Heritage Protection Act). The basic principle of preserving, managing, and utilizing cultural heritage is to maintain its original form (Article 3 of the Cultural Heritage Protection Act). In addition, cultural heritage is a lot of cases where it is difficult to recover if it is damaged once, and it takes enormous costs and time even if it is possible to recover (see Supreme Court Decision 2004Du10661, Jan. 28, 2005).

When examining whether or not the disposition such as project approval for the preservation of cultural heritage is deviates from or abused by discretionary authority, it shall be carefully determined by comprehensively taking into account the contents and purport of the Cultural Heritage Protection Act as above, characteristics of cultural heritage, degree of infringement of people's property rights due to such disposition

Specifically, the Constitution provides that “The State shall endeavor to inherit and develop traditional culture and to promote national culture” (Article 9), and imposes an obligation to endeavor to inherit traditional culture on the State, and ② The Cultural Heritage Protection Act specifically sets out the obligations of the State and local governments for the preservation and management of cultural heritage in accordance with such constitutional ideology, while also stipulates that the State and local governments shall actively cooperate with the measures of the State and local governments for the preservation and management of cultural heritage (Article 4), ③ The professional and technical judgment that the administrative agencies issued as prescribed by relevant Acts and subordinate statutes, such as the Cultural Heritage Protection Act, should be respected to the maximum extent possible, barring any special circumstances (see Supreme Court Decision 9Du264, Oct. 27, 200).

B. In full view of the following circumstances, the lower court determined that: (a) the instant project aimed at restoring and maintaining the instant land in light of the historical value of the storm and flood is a matter of course recognized the public interest; and (b) the instant land subject to expropriation is the site of the storm and flood walls or the site directly adjacent to the relevant plastic wall, and that it is necessary for the preservation and management of the storm and the soil, and ③ the comparative balancing between the public and private interests also conforms to the principle of proportionality.

(1) Taking into account Article 9 of the Constitution, Articles 1 and 4 of the Cultural Heritage Protection Act, projects for “Preservation, Management, and Utilization of Cultural Heritage” as prescribed by the Cultural Heritage Protection Act are to realize the State’s obligations upon constitutional request, and are justifiable public interests.

(2) Pungsung is a historic site presumed to be a lux in order to fill the white spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic of the highest (Pest) discovered in Korea, which is the most important among the relics that show the history of the white spathic spathic spathic spathic spathic. Spathic spathic spathic spathic spathic spathic spathic spathic spathic spathic spathics

(3) According to the excavation inspection report, among the land subject to expropriation of this case, it is presumed that the Plaintiff had sexual walls or facilities to be installed in the apartment site of the Plaintiff, and even if not, it is presumed that it is very close to the sexual walls or facilities to be installed. In order to restore and maintain the sexual walls or facilities of the sea, the surrounding areas are bound to be expropriated.

(4) By January 2017, the Cultural Heritage Administration, the Intervenor, and the Songpa-gu Seoul Metropolitan Government purchased approximately KRW 276,686 square meters of land, etc. within the area designated as a private site for windingtos (total area of KRW 379,984.3 square meters) and KRW 5,50.2 billion. It is anticipated that approximately 1 trillion won will be input for compensation for land, etc. within the Class II area, which is the core area expected to be purchased in the future. Of the instant land subject to expropriation, the Plaintiff’s factory site, among the instant land subject to expropriation, belongs to Class-1 area, which is a part of the plastic wall for windingtos, and belongs to the core area of the entire restoration and improvement project of wind

(5) Since the existence of a plastic wall is strongly presumed, the purpose of the instant project is to restore and maintain a plastic wall by means of a studio, which ultimately accords with the principle of maintaining the original form, by restoring a storming nature close to its original form.

(6) The ultimate purpose of the instant project is to restore, improve and utilize the scenicity, and the excavation survey is the basic work that must be prior to the restoration and maintenance of the scenicity.

(7) Since the partial restoration and maintenance of the lost part of the wall itself are meaningful projects, it cannot be deemed that the instant project can be carried out only when the complete restoration of the wall is possible.

(8) In light of the fact that the disadvantage following the discontinuance of factory operation can be recovered to a certain extent due to business compensation, etc., it is difficult to view the degree of infringement of private interest arising from the expropriation of the instant site subject to expropriation due to the public announcement of project approval of the instant case, in light of the public interest of protecting cultural property value.

(9) In light of the form of storming, etc., the part which is less in need of expropriation is bound to be narrow and long so long as it is long and narrow toward the direction of South and North Korea over various land. As the remaining land is not so high that it cannot be deemed that excluding this part from the subject of expropriation is the Plaintiff’s profit.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower court’s determination is justifiable, and it did not err by misapprehending the legal doctrine on deviation and abuse of discretionary power, such as public interest, necessity, and proportionality.

2. Whether the head of Songpa-gu, who is the head of a local government, can become a project implementer who can expropriate State-designated cultural heritage pursuant to Article 83 (1) of the Cultural Heritage Protection Act;

Article 83(1) of the Cultural Heritage Protection Act provides that "the Administrator of the Cultural Heritage Administration or the head of a local government may, if necessary for the preservation and management of cultural heritage, expropriate or use land, buildings, standing trees, bamboo, and other structures within designated cultural heritage or its protection zone pursuant to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Land Compensation Act")."

Meanwhile, the State shall establish and implement comprehensive policies for the preservation, management, and utilization of cultural heritage; local governments shall establish and implement policies for the preservation, management, and utilization of cultural heritage, taking into account national policies and regional characteristics (Article 4 of the Cultural Heritage Protection Act); the Administrator of the Cultural Heritage Administration may designate local governments, etc. as management organizations for the management of State-designated cultural heritage (Article 34 of the Cultural Heritage Protection Act); and the head of local governments, if deemed necessary for the management and protection of State-designated cultural heritage and its historical and cultural environment preservation areas, may order the prohibition or restriction of certain acts, the removal of facilities, obstacles, and emergency measures necessary for the preservation of cultural heritage (Article 42(1)

As such, the Cultural Heritage Protection Act imposes not only City/Do-designated cultural heritage but also City/Do-designated cultural heritage, and also imposes certain authority or responsibilities on the State-designated cultural heritage, and the Cultural Heritage Protection Act does not impose restrictions on the State-designated cultural heritage’s right to expropriate land, etc. under the Cultural Heritage Protection Act. Therefore, the head of a local government designated as a management organization for State-designated cultural heritage may expropriate State-designated cultural heritage or land within its protection

The court below determined that the intervenor head of Songpa-gu, who is a management organization, may expropriate the site subject to expropriation of this case even if it is a State-designated cultural heritage asset, according to the above legal principles, and did not err by misapprehending the legal principles on the subject of expropriation under Article 83(1) of the Cultural Heritage Protection Act.

3. Whether an intervenor is deemed able and capable of performing public works by the head of Songpa-gu.

A. Since the right to expropriate another person’s property rights cannot be granted to a person who has no intention or ability to realize the public interest by performing public works, it shall be deemed that the project operator has the intent and ability to perform the relevant public works (see Supreme Court Decision 2009Du1051, Jan. 27, 201).

B. The lower court determined that: (a) the project cost for the instant project appears to be fully available; (b) the method of raising the project cost is lawful; and (c) the land expropriation compensation is included in the purpose of subsidies and local expenses as prescribed by the relevant statutes; (b) thus, the Intervenor head of Songpa-gu cannot be deemed to have no intent or ability to perform the project to the Intervenor head of Songpa-gu

In light of the relevant legal principles and records, such determination by the court below is just, and there is no error by misapprehending the legal principles on intent or ability to implement public works.

4. Whether a defect in a private designated disposition is succeeded.

The lower court determined to the effect that each of the instant private designated dispositions and the instant public announcement of project approval are separate legal effects independently from each other, and that the non-existence of the private designated dispositions and the binding force thereof are harsh than that of the Plaintiff, and that the outcome thereof is impossible to be predicted, and that the defect of each of the private designated dispositions alleged by the Plaintiff was not succeeded to the public announcement of project approval of the instant case, on the grounds that there are no circumstances to deem that the defect of each of the private designated dispositions alleged by the Plaintiff falls

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court’s determination is justifiable, and it did not err by misapprehending the legal doctrine on succession to defects.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)