[1] The legal nature of the right to request the remaining land expropriation under the Land Expropriation Act (=the right to formation), the legal nature of the period of exercise (=the period of exclusion) and the time limit for exercising the right to request the remaining land expropriation in accordance

[2] The legal nature of a lawsuit seeking payment of damages in a case where a public project operator removes an object which is not subject to expropriation without any compensation during the process of expropriation and thereby causes damage to its owner, etc. (=a claim for damages due to tort by civil thought)

[1] The right to request the expropriation of remaining land under the Land Expropriation Act has a formative nature that takes effect upon the request without any special measure taken by the Land Tribunal when the requirements are met, and the period of the exercise is a exclusion period, and the right is extinguished if the landowner does not exercise the right to request the remaining land within the period of the exercise. Thus, at the time when Article 48(1) of the former Land Expropriation Act (amended by Act No. 4231 of Apr. 7, 190) is applied, the landowner may exercise the right to request the remaining land within two weeks from the date of public announcement of the application for adjudication as prescribed by the said Act after the amendment of the said provision and the provision on the period of exercise is newly established, and the land expropriation under the Urban Planning Act shall not be deemed otherwise to have been implemented within the period of two weeks from the date of public announcement of the application for adjudication (Article 48(1) of the Land Expropriation Act prior to the amendment by Act No. 5909 of Feb. 8, 199) or the competent local Land Expropriation Committee under the Urban Planning Act.

[2] In a case where a public project operator causes damage to the owner, etc. by removing an object which is not subject to expropriation without any compensation during the process of expropriation, such act constitutes a tort, and even if such unlawful act used the term "compensation for damage", it shall be deemed as a civil claim for damages under the Civil Act.

[1] Article 48(1) of the former Land Expropriation Act (amended by Act No. 4231 of Apr. 7, 1990), Articles 36 and 48(1) of the former Land Expropriation Act (amended by Act No. 4231 of Apr. 7, 1990), Articles 48(1) of the Land Expropriation Act (amended by Act No. 5909 of Feb. 8, 199), Articles 67 and 68 of the Urban Planning Act / [2] Article 45 of the Land Expropriation Act, Article 750 of the Civil Act

[1] Supreme Court Decision 88Nu852 decided Jun. 13, 1989 (Gong1989, 1094) Supreme Court Decision 93Nu1159 decided Nov. 12, 1993 (Gong1994Sang, 109), Supreme Court Decision 93Nu20627 decided Sept. 15, 1995 (Gong1995Ha, 3414), Supreme Court Decision 2001Da16333 decided Jun. 1, 2001 (Gong201Ha, 1508) / [2] Supreme Court Order 88Ma850 decided Nov. 3, 198 (Gong198, 1518), Supreme Court Decision 200Du208379 decided Nov. 38, 197 (Gong198, 1518), Supreme Court Decision 200Du38079 decided Nov. 37, 2007)

Plaintiff (Cheongyang Law Firm, Attorneys Lee Jae-hoon, Counsel for the plaintiff-appellant)

The Central Land Tribunal and one other (Attorney Cho Sung-sung, Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Gu4809 delivered on October 6, 1999

Of the judgment of the court below, the part on the attached land (the cancellation of the judgment and payment of the increased compensation order, and the part on dismissal of the claim for cancellation of ownership transfer registration) and the part on the attached land (the part on the attached land) and six through eight obstacles shall be reversed, and this part of the case shall

1. We examine the attached Form 4 of the judgment of the court below (hereinafter referred to as "attached Form of the judgment of the court below")

Unlike the period of exercise under the Land Expropriation Act, the right to request the remaining land expropriation under Article 48(1) of the former Land Expropriation Act (amended by Act No. 4231 of Apr. 7, 1990) has a formative nature that may arise from the effect of expropriation upon request without a specific measure taken by the Land Expropriation Committee (see Supreme Court Decision 93Nu1159, Nov. 12, 1993). The period of exercise is the exclusion period, and if a landowner does not exercise the right to request the remaining land within the period of exercise, the right shall be extinguished unless the landowner exercises the right to request the remaining land expropriation within the period of exercise. Therefore, at the time of application of Article 48(1) of the former Land Expropriation Act (amended by Act No. 4231, Apr. 7, 1990), the landowner was able to exercise the right to request the remaining land expropriation by the method of disputing the amount of compensation for the land expropriation (see Supreme Court Decision 88Nu852, Jun. 13, 1989).

According to the reasoning of the judgment of the court below, since the plaintiff submitted a written application on September 16, 1996, which was after the ruling by the Gyeonggi-do Land Expropriation Committee was made, not only the two-day perusal period from the date of the public notice of the application for adjudication, but also after the ruling by the Gyeonggi Land Expropriation Committee, and it is doubtful whether the plaintiff filed a claim for expropriation of the remaining land on the ground that the plaintiff did not point out four specific land in the record, and it can be deemed that the plaintiff made a claim for expropriation of the remaining land on the ground that the plaintiff did not point out four land. Even if the claim was made, even if the claim was made, the judgment by the Central Land Expropriation Committee (hereinafter referred to as the "Defendant Central Land Expropriation Committee") was made on the illegal land after the expiration of the exercise period, and the defect is not cured

Therefore, the plaintiff can seek the confirmation of invalidity of the decision against the defendant Heavy First Instance on the ground of the unique defects of the decision itself, as well as the revocation of the invalidation declaration, but the court below rejected the plaintiff's assertion seeking revocation of the decision on the ground that the plaintiff made a legitimate request for expropriation of the remaining land and the defendant Middle Heavy Sea made a legitimate decision on expropriation of the remaining land within its authority. Thus, the court below rejected the plaintiff's assertion on the ground of revocation in the invalid declaration sense as to the decision on the objection against the defendant Middle Heavy Ocean on the land. In so doing, there is an error of law by misunderstanding the legal principles on the right

In addition, as long as the ruling on objection against Defendant Central Government on the land 4 is null and void, the land 4 cannot be included in the subject of increase in compensation under the premise that the ruling is valid, barring special circumstances, and the registration of ownership transfer based on the ruling is null and void. Therefore, the part ordering the payment of compensation for the land 4 and the part dismissing the claim for cancellation of the registration of ownership transfer is also unlawful.

2. The following shall be regarded as 6 to 8 obstacles:

If a public project operator causes damage to the owner, etc. by removing an object not subject to expropriation without any compensation during the process of expropriation, this constitutes a tort, and even if using the term "compensation for losses" a lawsuit seeking compensation for damages arising from such tort, it shall be deemed as a civil claim for damages (see Supreme Court Order 8Ma850, Nov. 3, 198).

According to the records, the plaintiff sought compensation by asserting that he would incur damage equivalent to the value of the plaintiff by removing or removing obstacles 6 through 8 without any ground. The plaintiff's claim is not a claim for increase of compensation, but a claim for civil damages has been combined and should be examined and determined accordingly. However, the court below rejected the claim only by deeming it as a claim for increase of compensation. In so doing, the court below erred by misapprehending the legal principles on the procedures for examining civil damages claims joined in the administrative litigation procedure, which affected the conclusion of the judgment.

3. The last 9 to 18 obstacles shall be considered.

The court below's rejection of the plaintiff's claim as to this part of the judgment of objection as to the above 9 to 18 obstacles is unlawful since it is based on the appraisal that did not specify the specific grounds for calculation of the appraised value. However, since the appraisal result conducted by the commission of the court below is not specified in the specific grounds for calculation, it is not sufficient evidence to prove that the amount of compensation exceeds the amount of compensation of the judgment, it is just in light of the records, and it is not erroneous in the misapprehension of legal reasoning, inconsistent with the reasoning of the lawsuit, or incomplete deliberation, etc.,

4. Conclusion

Therefore, among the judgment below, the part concerning the land (this ruling is revoked and the increased compensation is ordered, and the part concerning the dismissal of the claim for cancellation of the registration of ownership transfer) and the part concerning the six through eight obstacles is reversed and remanded to the court below. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ji-dam (Presiding Justice)