Plaintiff 1 and one other (Law Firm Young-jin, Attorneys Lee Young-chul, Counsel for the plaintiff-appellant)

The Incheon High Court Decision 201Na10114 decided May 1, 201

June 4, 2009

1. As to the forest land of Jung-gu, Incheon (hereinafter omitted), the Defendant (Counterclaim Plaintiff) filed with the Plaintiff (Counterclaim Defendant 1) each procedure for the registration of ownership transfer on the ground of the Plaintiff’s redemption on January 21, 2009 with respect to the forest land of 38,395 square meters, and with respect to forest land of 49,965 square meters in Jung-gu, Incheon (hereinafter omitted) to the Plaintiff (Counterclaim Defendant 2).

2. The plaintiff (Counterclaim defendant) 1 shall pay to the defendant (Counterclaim plaintiff) 386,731,718 won with 5% interest per annum from the day following the day this judgment became final and conclusive to the day of full payment.

3. The remainder of the counterclaim claim against the plaintiff (the counterclaim defendant) 1 and the counterclaim claim against the plaintiff (the counterclaim defendant) 2 are dismissed, respectively.

4. The costs of lawsuit are assessed against the Defendant (Counterclaim Plaintiff) by adding the principal lawsuit and the counterclaim to the part incurred between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff). The remainder is assessed against the Plaintiff (Counterclaim Defendant), the Plaintiff (Counterclaim Plaintiff), the Plaintiff (Counterclaim Plaintiff), the Plaintiff (Counterclaim Plaintiff), and the Defendant (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

The main office is as set forth in Paragraph (1).

Counterclaim: Plaintiff 1,165,08,596 won; Plaintiff 2, from May 16, 2008 to the delivery date of the duplicate of the instant counterclaim; and 20% per annum from the next day to the date of full payment (hereinafter “Defendant 1”) to Defendant 1 (Counterclaim Defendant; hereinafter “Plaintiff 1”); Plaintiff 1,165,08,596 won; Plaintiff 2, from May 16, 2008 to the date of delivery of the duplicate of the instant counterclaim; and Defendant 20% per annum from the next day to the date of full payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The Defendant, as the operator of the new airport construction project under the New Airport Construction Promotion Act, promoted the compensation project for land included in the airspace cutting zone for the safe operation of aircraft in order to cut the radioactive mountain that impedes the safe operation of aircraft entering and departing from the Incheon National Airport (hereinafter “instant project”) around 2001, and accordingly implemented the land development project in Incheon International Airport 2 stage construction project site and the construction project for the 2 stage construction project of Incheon International Airport 2 stage construction project during the period from around 2002 to around 2006 (hereinafter “the instant project”).

B. Within the pertinent business zone prior to the instant business, Plaintiff 1 was part of 38,395 square meters of forest land in Jung-gu, Incheon (hereinafter omitted) and 38,395 square meters of forest land (hereinafter “5 square meters of forest land”). On December 13, 2003, Plaintiff 1 was divided into 48,793 square meters of forest land and 48,793 square meters. On December 13, 2003, Plaintiff 1 was divided into 1 square meters of forest land and 49,965 square meters of forest land and 49,965 square meters of forest land and 49,965 square meters (hereinafter “1 square meters”), and Plaintiff 2 was part of forest land and 66,116 square meters of forest land and 30,000 square meters of forest land and 33,193 square meters of forest land and 30,000 square meters of forest land and 20,000 square meters of forest land were omitted.

C. The Defendant entered into a pre-sale agreement with Plaintiff 1 on December 27, 2001 with regard to the land of this case with the purchase price of KRW 861,967,750 on the land of this case (22,450 on the land of this case). On May 26, 2005, the Defendant entered into a pre-sale agreement with the Defendant on December 27, 2001 with regard to the land of this case with the purchase price of KRW 1,404,016,50 on the land of this case (28,100 on the land of this case). On June 29, 2005, the Defendant entered into a pre-sale agreement with Plaintiff 2 on the land of this case with the purchase price of KRW 1,404,01,50 on the land of this case (28,000 on the land of this case) and entered into a pre-sale agreement with the Defendant on June 29, 2005 (hereinafter the pre-sale agreement was omitted).

D. After that, cutting of each of the instant lands was completed. On May 25, 2008, the Plaintiffs sent a copy of the complaint of this case to the Defendant on the service of the copy of each of the instant lands, and deposited the amount equivalent to the compensation paid by the Defendant on January 21, 2009 with the Defendant as the principal deposit, and the Plaintiff 1 deposited the amount equivalent to the compensation paid by the Defendant on January 21, 2009. The Plaintiff 1 deposited the amount KRW 1,404,016,50 in gold No. 501 in 2009, and the Plaintiff 2 deposited KRW 861,967,750 in gold No. 502 in 209, respectively.

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 10, each entry of Eul evidence 10 (including each number), the purport of whole pleadings

2. Determination as to the principal lawsuit

A. According to the above facts, each land of this case is the land acquired by the defendant as the land necessary for the business of this case, which is no longer necessary to use since the business of this case is terminated. The plaintiffs expressed their intention to repurchase each of the land of this case through the delivery of a copy of the complaint of this case and deposit the amount corresponding to the compensation amount for each of the land of this case with the defendant as the defendant. Thus, barring any special circumstance, pursuant to Article 92 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter "Public Works Act"), the defendant is obligated to implement the registration procedure for transfer of ownership for repurchase on the ground of repurchase as of January 21, 2009, when the defendant declared his intention to repurchase each of the land of this case to the plaintiffs.

B. As to this, the Defendant asserted that the Incheon Metropolitan City shall set up a determination of urban planning facilities for each of the instant land as an urban park and restore each of the instant land to the Incheon Metropolitan City pursuant to the Urban Park Act, etc., and that the creation of urban parks is still necessary for the public works, since each of the instant land included in the instant project is still necessary for public

However, according to the facts acknowledged above, the purpose of the project in this case is to ensure the safe operation of aircraft by removing hills that can interfere with the operation of aircraft, and the restoration duty pursuant to the Urban Park Act, etc. claimed by the defendant cannot be deemed to be included in the project in this case. Thus, the defendant'

3. Judgment on the counterclaim

A. The assertion

Since the price of each of the lands of this case has increased remarkably compared to the time of acquisition by consultation, the Defendant, as a result of the difference between the legitimate redemption price and the amount equivalent to the compensation deposited by the Plaintiffs, sought KRW 1,165,08,596 as to Plaintiff 1, and KRW 1,174,092,560 as to Plaintiff 2, respectively, as a counterclaim.

B. Determination

1) Article 91(4) of the Public Works Act provides that where the price of land is substantially changed compared with that of the land at the time of acquisition of the right of repurchase, the project operator and the repurchase right holder shall consult on the amount of repurchase, but if an agreement is not reached, the increase or decrease of such amount may be claimed to the court. Article 48 of the Enforcement Decree of the same Act provides that the term “where the price of land is remarkably changed compared with that at the time of acquisition of the right of repurchase” means the case where the amount paid the price of land at the time of exercise of the right of repurchase exceeds the amount obtained by multiplying the compensation amount paid by the fluctuation rate of neighboring similar land unrelated to the relevant project at the time of repurchase by the fluctuation rate of neighboring land unrelated to the relevant project at the time of repurchase. Meanwhile, the above relevant Act does not expressly provide for the determination of the repurchase price by any method where the price of the land at the time of repurchase is remarkably changed compared with that at the time of acquisition of the right of repurchase 2, i.e., the amount obtained by deducting the compensation amount of neighboring land at the time of appraisal at the time of repurchase.

2) According to the facts acknowledged earlier and the fact-finding result on the appraiser 205 x 205 x 206 x 40 m20 m20 m20 m20 m20 m25 m20 m26 m28 m28 m204 m25 m28 m204 m26 m28 m28 m204 m26 m28 m204 m28 m204 m25 m26 m208 m25 m208 m204 m26 m204 m25 m208 m26 m204 m25 m201 m26 m204 m204 m25 m20

Therefore, the defendant may claim the amount of redemption on the land No. 1 against the plaintiff 1, while the plaintiff 2 cannot claim the amount of redemption on the land No. 2.

Furthermore, the reasonable repurchase amount that the Defendant calculated according to the calculation method based on the above land fluctuation rate as seen earlier is KRW 1,248,69,468 (==861,967,750 + KRW 2,971,73,000 + KRW 2,585,041,282 (= KRW 861,967,750 + 299.9%).

3) The Plaintiffs, as to the method of calculating the price and the rate of land fluctuation, etc., are currently designated as urban planning facilities, the market price at the time of repurchase should be assessed as being limited in public law. However, the Defendant asserts that, even at the time of the acquisition of each land of this case, the sale price was calculated in a state where there was no limit under public law as to each land of this case under the same public law as at the time of the acquisition of the land of this case, and that the redemption price should be assessed in a state where there was no limit under public law. The Defendant’s base date of calculating the rate of land fluctuation should be calculated in May 2005 (the first land of this case) and June (the second

According to the evidence No. 11, the purchase price of each land of this case was calculated based on the condition that each land of this case was not subject to restrictions in the public law, such as urban planning facility neighboring parks, etc. at the time of the acquisition through consultation on each land of this case. However, considering that the land of this case was subject to restrictions on individual planning according to the determination of urban planning facilities, it can be acknowledged that the time of the price was determined on December 3, 2001, and there is no dispute between the parties at the time of the acquisition through consultation. In light of the provisions of the Public Works Act and the purport of the repurchase system, it is reasonable to view that the market price should be calculated in a state where there is no limit in the public law, such as the time of the acquisition through consultation on the repurchase price in this case. In addition, in light of the above circumstances, the date of the acquisition through consultation on each land of this case should be the date of the acquisition through consultation on the ownership transfer by the plaintiffs and the defendant as of December 1, 2001.

C. Sub-decision

Therefore, Plaintiff 2 has no obligation to pay the Defendant more than the amount of compensation already deposited, while Plaintiff 1 has the obligation to pay the Defendant 386,731,718 won (=1,248,69,468 won - 861,967,750 won) plus damages for delay calculated at the rate of 5% per annum under the Civil Act from the day following the day when the judgment becomes final and conclusive to the day of full payment (the Defendant is liable to pay damages for delay calculated at the rate of 20% per annum from May 16, 2008, the day following the day when the instant lawsuit was filed until the day of full payment, and 5% per annum from the next day until the day of full payment, but the amount of the redemption price increase claim under Article 91(4) of the Public Works Act can be exercised only by a lawsuit, and it cannot be viewed that there is a change in legal relations between the parties until the decision becomes final and conclusive.

4. Conclusion

Therefore, the plaintiffs' claims of this case are reasonable, and the defendant's counterclaim against plaintiff 1 are justified within the scope of the above recognition, and each of them is accepted, and the remainder of the defendant's counterclaim against plaintiff 1 and the counterclaim against plaintiff 2 are all dismissed. It is so decided as per Disposition.

Judges Choi Jin-hee (Presiding Judge)