[1] Whether a landowner may immediately file a claim against a project operator for compensation for losses due to a decrease in the price of remaining land under Article 73 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects without going through the adjudication procedure under Articles 34 and 50 of the same Act (negative), and whether the same applies to cases where the land to be expropriated was subjected to the adjudication procedure (affirmative)

[2] Whether selective consolidation of non-conformityable claims is permitted (negative) / Whether selective consolidation of claims for expropriation of remaining land pursuant to Article 74 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and claims for compensation for losses due to a decrease in the price of remaining land pursuant to Article 73 is permitted (negative)

[1] Articles 34, 50, 61, 73, 83, 84, and 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 8(2) of the Administrative Litigation Act, Article 253 of the Civil Procedure Act, Articles 73(1) and 74(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2006Du19495 Decided July 10, 2008, Supreme Court Decision 2011Du22587 Decided November 29, 2012 / [2] Supreme Court Decision 81Meu120 Decided July 13, 1982 (Gong1982, 747)

Seoul High Court Decision 2001Na14488 delivered on August 1, 201

Seoul Special Metropolitan City (Government Law Firm Corporation, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu23790 decided February 3, 2012

Of the judgment of the court below, the part against the defendant as to the land of the attached table Nos. 1 and 8 of the judgment below and the part against the defendant as to the application for the return of provisional payment shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The plaintiff's incidental appeal

The grounds of appeal and incidental grounds of appeal are examined.

1. As to the Plaintiff’s grounds of incidental appeal

A. As to the first ground for appeal

The court below rejected the plaintiff's assertion that each land of this case should be viewed as commercial land or residential land, on the ground that the specific use area of this case is an industrial zone without a building or temporarily used for any other purpose, and that it is highly likely to be used and developed for industrial use in the near future, in full view of the circumstances in the judgment of the court of first instance.

In light of the relevant statutes and the evidence duly admitted, the above determination by the court below is just and acceptable. In so doing, it did not err by failing to exhaust all necessary deliberations, or by misapprehending the legal principles on the calculation of compensation for land subject to public law or the use of land.

B. On the second ground for appeal

In light of the facts and circumstances in the judgment of the court of first instance, the court below determined that the condition of “road surface” of the land No. 2 in this case constitutes “serious side”, which is “land adjacent to a road with a width of not less than 12m but less than 25m and less than 12m and less than 25m,” in full view of the location, form, and characteristics of the road along which the land No. 2 in this case adjoins the road in 208

In light of the evidence duly admitted, the above determination by the court below is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the condition of “road surface”.

2. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

(1) Article 73(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that “If the price of the remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same owner, or the construction of a passage, ditch, fence, etc. or other construction works are necessary on the remaining land, the project operator may purchase the remaining land as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport: Provided, That the sum of the reduced price of the remaining land and the construction expenses on the remaining land exceeds the price of the remaining land, the project operator may purchase the remaining land.” In full view of the provisions of Articles 73, 50, 61, 83 through 85 of the same Act, and the legislative purport thereof, etc., the project operator is not entitled to the compensation for damages from the project operator under Article 73 of the Public Works Act, Article 34 of the Public Works Act and Article 50 through 280 of the same Act, and the same shall not apply to the following procedure for the adjudication.

According to the facts admitted by the court below and the evidence duly admitted, the plaintiff can be found to have immediately claimed the compensation for losses against the defendant who is the project operator without going through a separate adjudication procedure as to the compensation for losses caused by the decline in the remaining land price of the land of this case except for the land subject to expropriation in the judgment below. Thus, this part of the claim is not allowed in light of

Nevertheless, the lower court rejected the Defendant’s assertion that this part of the claim is unlawful, and accepted the Plaintiff’s claim for compensation. This is erroneous by misapprehending the legal doctrine on the procedure for claiming compensation for damages due to a decrease in the price of the remaining land.

(2) Meanwhile, according to the records, the court below allowed the plaintiff to selectively consolidate the claim for expropriation of the remaining land with respect to the land in this case, and accepted the claim for compensation for damages due to a price decrease in the remaining land price as stated in its reasoning. However, the selective consolidation of claims is a combination of claims seeking the same benefit, or seeking the same formative effect based on the right to form several concurrent claims that can be compatible with the plaintiff, under the condition that one claim will be accepted. Thus, it is not logically incompatible claims are not allowed to be joined (see Supreme Court Decision 81Meu120, Jul. 13, 1982). However, the claim for expropriation of the remaining land and the claim for compensation for damages due to price decrease in the remaining land are incompatible with each other, and it is impossible to selective consolidation of claims, and the court below erred by allowing selective consolidation of the above two claims.

B. On the second ground for appeal

For the reasons indicated in its holding, the lower court determined that it is reasonable to view the part on which the Plaintiff obtained permission to occupy and use a road as 49 square meters in contact with the land of Guro-gu Seoul Metropolitan Government ( Address 1 omitted) and ( Address 2 omitted).

In light of the evidence duly admitted, the above determination by the court below is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the confirmation of administrative disposition or the fairness and influence of administrative acts.

C. On the third ground for appeal

The court below held that in the case of the land No. 1 of this case, the boundary does not directly contact the boundary of India, and there are land in shape, such as the Guro-gu Seoul ( Address 1 omitted), ( Address 3 omitted), land ( Address 2 omitted), and land ( Address 2 omitted), etc., within the range of the long range. However, in light of the circumstances of the judgment, the condition of the “road adjoining to the road” of the land No. 1 of this case corresponds to the “road adjoining to a road of not less than 25 meters wide.”

In light of the relevant statutes and the evidence duly admitted, the above determination by the court below is just and acceptable, and it did not err by misapprehending the legal principles on temporary use of the instant land No. 1 or on the conditions of “road adjoining”.

D. On the fourth ground for appeal

In a lawsuit on the increase or decrease of compensation, where there is a difference between the appraisal by the appraisal institution which forms the basis of the judgment and the appraisal by the court appraiser differently from the appraisal by the comparison of individual factors, whether to choose any one of the appraisal is subject to the discretion of the court. However, this is allowed only to the extent that there is no error in the comparison of individual factors of the appraisal, and it is not contrary to logical and empirical rules.

However, according to the facts admitted by the court below and the evidence duly adopted, ① The appraisal result of Onnuri appraisal corporation, which adopted for the compensation of land No. 1 (hereinafter “Ondonuri”) is commercial, unlike the court below which viewed the use status of land No. 1 as industrial use, under the premise that the use status of land No. 1 in this case is commercial use in comparison with the standard land No. 8,066m2, such as environmental conditions or administrative conditions (Seoul Guro-gu address 4 omitted), and the difference is higher than that of land No. 1 in appraisal conducted in the adjudication procedure or in the first instance court’s other appraisal corporation (hereinafter “AB”). In particular, in comparison with administrative conditions, the appraisal rate is higher than 1.31,00,000 if there is no difference between the appraisal rate of land No. 1 and the appraisal rate of land No. 2, the appraisal rate is higher than that of the same case, and even if there is no difference between the appraisal rate of land No. 2 and the appraisal rate of the same. 1.

As such, the result of the Onnurinuri's appraisal that was adopted by the court below for the compensation of the land No. 1 was different from the court below, and there was a part that does not comply with the Onnurin's appraisal content for the land No. 2. The reason is clearly different from that of other appraisal agencies or appraisers conducted in the process of the adjudication or trial, but there is no reasonable reason for it. Thus, in order to adopt the appraisal result as evidence, it is necessary to first consider its validity after a sufficient deliberation.

Nevertheless, the court below adopted the appraisal result of Onnuri which is difficult to obtain as above for the reasons stated in its holding, which goes beyond the court's discretion on adoption of appraisal result, and based on this, the judgment of the court below which calculated compensation for the land No. 1 of this case is erroneous by failing to exhaust all necessary deliberations.

E. As to the claim for the return of provisional payment

As to the merits, as long as the part of the judgment below against the defendant as to the land No. 1 and the land No. 8 of this case is reversed, the part against the defendant among the judgment on the defendant's application for return of provisional payment shall also be reversed (see Supreme Court Decisions 96Da5001, May 10, 1996; 201Da56033, Sept. 13, 2013, etc.).

3. Conclusion

Therefore, among the judgment of the court below, the part against the defendant as to the land Nos. 1 and 8 and the part against the defendant as to the claim for the return of provisional payment are reversed, and this part of the case is remanded to the court below for a new trial and determination. The plaintiff's incidental appeal and the remaining appeals by the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-young (Presiding Justice)