[1] Whether a person who has the right of substantial disposal, such as the right of collection and removal, is included in the “person who has the ownership and other rights to the things fixed on the land” subject to the legal compensation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where the price of an obstacle that interferes with the implementation of a project is compensated for the price of an obstacle that is below the relocation cost pursuant to Article 75(1)2 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, whether the project implementer is not entitled to acquire the ownership of the obstacle or demand the owner of the obstacle to remove the obstacle or deliver the land at his/her own expense, and whether the owner of the obstacle has the authority and burden to remove it directly at his/her own expense (affirmative in principle), and whether the owner of the obstacle is in a position to allow the project implementer to remove the obstacle

[3] In a case where Gap, a railroad construction project operator Eul, deposited the price of the building, etc. and the compensation for relocation of the building, etc. under the adjudication by the Central Land Tribunal for expropriation of the building owned by Eul, and Eul continued to use the remaining parts of the building which were not removed, but thereafter, Byung deposited the amount equivalent to the expenses incurred in the construction and relocation of the building, etc. among the compensation for expropriation again, with Byung’s association and Eul’s or Eul’s bank deposited the deposited amount with the deposited amount as to the construction and relocation of the building, the case holding that the judgment below erred by misapprehending legal principles, holding that Byung’s right to claim compensation for obstacles to Byung’s association belongs to Eul, not to Eul, but to the Corporation which held the right to be removed after the completion of the price compensation for the building, and on the contrary, the ownership of the building was attributed to Eul solely on the ground that the ownership of the building was attributed to Eul

[1] The "person who has ownership or other rights to any fixtures on land" subject to the legal compensation for the acquisition of land, etc. for public works and the compensation therefor includes a person who has the right of substantial disposal, such as the right of removal or removal.

[2] In a case where a project operator compensates the price of a thing that does not meet the actual expenses incurred in the transfer of land, etc. for a public project with respect to an obstacle that impedes the implementation of a project, it is difficult to view that the project operator acquires the ownership of the thing only by the compensation unless the project operator takes the procedure of expropriation unlike subparagraph 3 of Article 75 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, on the other hand, the project operator can not demand the owner of the obstacle to remove the thing at his own expense and remove it directly at his own expense unless there are special circumstances such as the owner of the obstacle to remove it at his own expense pursuant to the proviso of Article 33 (4) of the Enforcement Rule of the same Act. In such a case, the owner of the obstacle can not demand the removal of the obstacle and directly remove it at his own expense within a reasonable period of time that does not interfere with the implementation of the project, and the project operator shall be in a position to remove the obstacle and the value of the thing generated in the process at his own expense.

[3] In a case where Party A, who is a railroad construction project operator, deposited the price of the building, etc. and the compensation for relocation of the building, etc., and Party B continued to use the remaining parts of the building, which were not removed, after which Party B’s relocation of the building had been again expropriated, and Party C deposited the amount equivalent to the expenses for the construction and relocation of the building, etc., out of the compensation for expropriation, with Party C’s association and Party A or Party B’s interest as a result of conciliation established between the association and Party B, the case holding that the lower court erred by misapprehending the legal doctrine that Party A’s right to claim the removal of the building, on the ground that Party A was entitled to legal compensation for the removal and removal of the building by paying the compensation for relocation of the building, and Party A was entitled to the said right to claim the removal of the building, on the ground that the ownership of Party A, which is the project operator, can be attributed to Party C’s right to claim the removal of the building.

[1] Article 2 subparag. 5 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 75(1)2 and 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 33(4) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [3] Articles 2 subparag. 5 and 75(1)2 of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 33(4) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2008Da76112 Decided February 12, 2009 (Gong2009Sang, 330) / [2] Supreme Court Decision 2010Da94960 Decided April 13, 2012 (Gong2012Sang, 776)

Plaintiff (Law Firm Cheongn, Attorneys Lee Dong-chul et al., Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm Sejong, Attorneys Yang-hee et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2018Na40447 Decided September 21, 2018

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Case history and key issue

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

(1) The Minister of Construction and Transportation incorporated part of the land owned by the Plaintiff into the said project for the execution of railroad construction projects.

(2) Although the Defendant intended to acquire only the part included in the track site among the instant building owned by the Plaintiff, the Plaintiff asserted that the remainder of the building cannot operate a factory and demanded the Plaintiff to acquire the entire building through consultation.

(3) The Defendant deposited KRW 385,610,860 (the price and transfer compensation for the entire building, etc. of this case is KRW 233,084,00 among them) in the aggregate of the land expropriation compensation, the price and transfer compensation for the building of this case, etc. in accordance with the adjudication of expropriation by the Central Land Expropriation Committee that the Plaintiff would expropriate the land to be incorporated into the project on August 24, 2010 and transfer obstacles to the building of this case, etc. of this case, and the Plaintiff was paid the Plaintiff.

(4) The Defendant removed only parts that conflict with the railroad construction project planning lines, and the Plaintiff continued to use the remaining parts of the building and operated the factory.

(5) Meanwhile, as the price of the instant building was incorporated into the redevelopment project site after the completion of the adjudication of expropriation, there was a dispute between the Plaintiff and the Defendant regarding the partial attribution of the expropriation compensation. During the lawsuit, the Nonparty association filed a lawsuit against the Plaintiff seeking the delivery of the instant building, and agreed on the method of determining the compensation for the instant building and the details of delivery of the instant building at the same time with the Plaintiff to reduce the cost incurred from the prolongedization of the redevelopment project and promptly implement the redevelopment project. At the same time, the Plaintiff and the Plaintiff agreed on the method of determining the compensation for the instant building and the cost of delivery of the instant building. Nonparty association deposited KRW 538,265,125 won to the Plaintiff at the same time as the cost of delivery of the instant building, and deposited KRW 180,719,7830 to the Plaintiff, the remainder of the installation compensation amount to the Plaintiff and KRW 180,780 to the Plaintiff, the Plaintiff association deposited the instant building or the Plaintiff’s remainder of the installation compensation amount to the Plaintiff 18080.

B. The Plaintiff asserts that the Plaintiff is in the position of receiving compensation as the owner before the building of this case was removed, and the Defendant asserts that the Plaintiff received compensation again from the non-party cooperative even after having already received compensation necessary for the relocation of the building of this case or the machinery of this case, and thus, the Defendant, who acquired the right of removal by completing the previous compensation, has the right to receive compensation. Therefore, the key issue of this case is whether the Plaintiff and the Defendant, among all, belong to the Plaintiff and the Defendant.

2. The relevant laws and regulations of the instant case are as follows.

Article 2 subparag. 1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that “land, goods, and rights falling under any subparagraph of Article 3” refers to land, goods, and buildings, etc. necessary for public works. Article 3 subparag. 2 of the same Act provides that “land owners” refers to the owners of land necessary for public works; Article 2 subparag. 4 of the same Act provides that “interested persons” refers to the owners of land, and Article 2 subparag. 5 of the same Act provides that “the owners of land, other than superficies, easements, right on a deposit basis, mortgage, right based on loan for use, or lease, or rights related to the land acquired or to be used by a project implementer, or the owners of other rights related to the land, other than ownership or other rights.” Article 43 of the same Act provides that the owners of land and other persons, who are not landowners or persons concerned, shall transfer the land or buildings to the project implementer at the price necessary for public works projects or the owners of the buildings, etc. shall be removed or removed at the existing price of the buildings.

3. Determination

A. An “person who has ownership or other rights to fixtures on the land,” which is subject to compensation under the Land Compensation Act, includes a person who holds a right to remove or remove (see Supreme Court Decision 2008Da76112, Feb. 12, 2009). In addition, in cases where a project operator compensates for obstacles that may hinder the implementation of a project at the price of objects that do not actually incur for the relocation pursuant to the proviso of Article 75(1)2 of the Land Compensation Act, it is difficult to view that the project operator acquires the ownership of such objects solely with the compensation unless the project operator takes the procedure of expropriation, unlike subparagraph 3, unless the project operator takes the procedure of expropriation, unless the owner of the obstacles directly removes at his/her own expense pursuant to the proviso of Article 33(4) of the Enforcement Rule of the same Act, and in such cases, the project operator can remove the obstacles at his/her own expense and at his/her own expense and remove them directly at his/her own expense, and the project operator cannot remove them at his/her own expense within 200 (see the proviso of Article 3301 of the above.

B. Examining the facts in light of the above legal principles, it is reasonable to view the Defendant as “related person” as stipulated in the Land Compensation Act, inasmuch as the Defendant had the authority to remove and remove the building of this case by paying compensation for relocation in accordance with the decision of expropriation.

In this case where the plaintiff and the non-party association deposited the non-party association's right to claim compensation for obstacles to the non-party association, in relation to the ownership of compensation for the building, etc. of this case, the right to claim compensation for obstacles shall belong to the non-party association, not to the plaintiff, who is only in the position of the defendant who is the project implementer, to receive compensation for obstacles from the defendant for the implementation of public works and to receive removal or removal of the building of this case for the implementation of the public works.

Nevertheless, the lower court determined otherwise that the Plaintiff was entitled to claim the payment of the instant deposit solely on the ground that the Plaintiff owns ownership. In so determining, the lower court erred by misapprehending the legal doctrine on the ownership of the relevant person under the Land Compensation Act, the individual compensation principle, and the reversion of compensation for goods fixed on the land, thereby adversely affecting the conclusion of the judgment. The allegation contained

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)