The nature of a lawsuit filed by a landowner against an adjudication by the land expropriation committee which is not accepted a request by the landowner for land expropriation under Article 72 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and the other party

In light of the language, history, and purport, etc. of Article 72 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), the right to request expropriation prescribed by the said provision is granted to the landowner as part of compensation, such as the right to request the expropriation of remaining land as prescribed by Article 74(1) of the Land Compensation Act, and has the nature of the right to form a right that may bring about the effect of expropriation at the request of the landowner. Therefore, a lawsuit filed against the landowner against the adjudication by the Land Tribunal that rejected the landowner’s request for land expropriation constitutes “litigation concerning an increase or decrease of compensation” as prescribed by Article 85(2) of the Land Compensation Act, and

Articles 72, 74(1), and 85(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 2008Du822 Decided August 19, 2010 (Gong2010Ha, 1823)

Plaintiff

Seoul Special Metropolitan City Land Expropriation

Seoul High Court Decision 2014Nu46739 decided November 20, 2014

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. All costs of the lawsuit are assessed against the plaintiff.

Judgment ex officio is made.

1. Article 72 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that in cases where “after a public announcement of project approval is made, the land owner may either request the project operator to purchase the land, or request the competent Land Tribunal to expropriate the land.”

In light of the language, history, purport, etc. of the above provision, the right to claim the expropriation prescribed in the above provision is a right granted to the landowner as part of the compensation for losses, such as the right to claim the expropriation of remaining land under Article 74(1) of the Land Compensation Act, and its effect takes place upon the landowner’s request. Therefore, a lawsuit filed against a land owner’s adjudication that did not accept a land expropriation request constitutes “litigation for increase or decrease of compensation” as stipulated in Article 85(2) of the Land Compensation Act, and the Defendant is not the land tribunal but the project implementer (see Supreme Court Decision 2008Du822, Aug. 19, 2010, etc.).

2. According to the reasoning of the lower judgment and the record, the Plaintiff asserted that ① the Defendant used the instant land for at least three years after the public announcement of the project approval was made by the head of Gangseo-gu Seoul Metropolitan Government, a project implementer of the instant urban planning project, based on Article 72 Subparag. 1 of the Land Compensation Act, and filed a claim for expropriation of the instant land on the ground of Article 72 Subparag. 1 of the Land Compensation Act. ② the Defendant rendered a ruling dismissing the Plaintiff’s claim for expropriation on the ground that it does not meet the requirements under Article 72 Subparag. 1

When examining these facts in light of the above legal principles, the lawsuit of this case shall be the head of Gangseo-gu Seoul Metropolitan Government, the project implementer, as the defendant. Therefore, the lawsuit of this case against the land tribunal as the defendant is unlawful

Unlike the above, the lower court determined that the instant lawsuit was lawful, and thus, did not err by misapprehending the legal doctrine on the legal nature of the claim for expropriation of land to be used.

3. Therefore, without examining the Plaintiff’s grounds of appeal, the judgment of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment, and thus, the judgment of the court of first instance is revoked, and the lawsuit of this case is dismissed, and the total cost of the lawsuit is borne by the losing party. It is so decided

Justices Kim Shin (Presiding Justice)