In cases where the operator of a public project needs to use permanent state forests prescribed by the former Act on the Management and Management of State Forests for public projects, such as railroad service, for the public projects under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, whether he/she may acquire the ownership of or the right to use the non-permanent state forests through the adjudication under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor without following the procedures and methods prescribed by the former Act on the Management and Management of State Forests (negative) / In cases of non-permanent state forests, whether he/she may acquire the ownership of or the right to use the non-permanent state forests by the adjudication under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (negative)

In full view of the details, structure, and purport of Articles 16(1), (3), and (4)2, 17, 20(1)1, and (2), and 21(1)1 and 21(2), and Articles 11(2)2 and 18(1)1 of the Enforcement Decree of the Management and Management of State Forests Act (amended by Act No. 14357, Dec. 2, 2016; hereinafter “State Forest Act”), where an implementer of public works needs to use land, etc. for public works, such as permanent state forests for railroad services, without following the procedures and methods prescribed by the State Forest Act, he/she may not acquire the ownership right or existing state forests through a ruling under the Land Compensation Act.

Furthermore, even if the operator of a public service needs to use non-permanent state forests for the public service under the Land Compensation Act, such as railroad service, etc., he/she shall not obtain the ownership right or use right of non-permanent state forests through the adjudication under the Land Compensation Act without prioritizing the measures to acquire the ownership right or use right in accordance with the procedures and methods prescribed by the State Forest Act.

Articles 16(1), (3), and (4)2, 17, 20(1)1, and (2), and 21(1)1 and (2), and 21(1)2 of the former Act on the Management and Management of State Forests (Amended by Act No. 14357, Dec. 2, 2016); Articles 11(2)2 and 18(1)1 of the Enforcement Decree of the State Forest Act; Articles 6(2)4, 7(1), 27(1), 30(1), and 40(1)1 of the State Property Act; Articles 16, 26, and 28(1)1 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor;

Republic of Korea (Law Firm LLC, Attorneys Lee Jin-jin et al., Counsel for the defendant-appellant)

The Central Land Expropriation Committee

Seoul High Court Decision 2018Nu35782 decided July 12, 2018

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. The main issue of the instant case is whether it is possible for the Korea Rail Network Authority to obtain the right to use a permanent state forest or non-permanent state forest stipulated by the former State Forest Administration and Management Act (amended by Act No. 14357, Dec. 2, 2016; hereinafter “State Forest Act”) as a ruling of use under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) without obtaining permission to use a permanent state forest or non-permanent state forest under the State Forest Act in order to use the permanent state forest or non-permanent state forest for railroad service.

2. The main point of the provisions of the State Forest Act concerning the issue of the instant case is as follows.

(a) The Administrator of the Korea Forest Service shall classify state forests under his/her jurisdiction into permanent state forests in accordance with the following criteria, and classify non-permanent state forests into non-permanent state forests and manage them (Article 16(1)):

(1) State forests that need conservation for securing woodland for forest management, for developing forestry technologies, and for conducting scientific research.

(2) State forests that need to be preserved for public interests, such as the protection of private sites, scenic places, monuments, and tangible cultural heritage, the preservation of ecosystems, the protection of water sources, etc.

(3) Other state forests prescribed by Presidential Decree in need of conservation.

B. Permanent state forests shall be deemed to be “administrative property” under Article 6(2) of the State Property Act, and non-permanent state forests shall be deemed to be “general property” under Article 6(3) of the State Property Act (Article 16(3)).

(c)The permanent state forest is leased, sold, exchanged, or conceded or is not subject to private rights (Article 17), but if it is used for public works under the Land Compensation Act, it may be sold, exchanged, or leased in accordance with the criteria prescribed by Presidential Decree (Articles 20(1)1 and 20(2), and 21(1));

D. Where an permanent state forest among state forests under the jurisdiction falls under projects prescribed by Presidential Decree, which are necessary for public works under the Land Compensation Act, the Minister of the Korea Forest Service may re-classified the relevant state forest into a non-permanent state forest in accordance with the re-division standards prescribed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs (Article 16(4)2)). As such, public works for which the permanent state forest can be re-divided as a non-permanent state forest include “railroad projects implemented for the purpose of public interest with permission, authorization, approval, designation, etc. under the relevant Acts” (see Article 11(2)2 of the Enforcement Decree

E. Pursuant to the standards prescribed by Presidential Decree, the Minister of the Korea Forest Service may permit the use of permanent state forests in cases where the State or a local government intends to use permanent state forests for electricity, telecommunication, broadcasting, gas, water supply, or other infrastructure prescribed by Presidential Decree (Article 21(1)1 and 21(1)2). Here, “infrastructure” that can be permitted to use permanent state forests includes “railroad projects conducted for public interest by obtaining permission, authorization, approval, designation, etc. by relevant Acts” (see Articles 18(1)1 and 11(2)2 of the Enforcement Decree of the State Forest Act).

3.(a) For permanent state forests:

In full view of the details, structure, purport, etc. of the provisions of the State Forest Act, in a case where the executor of a public-service project needs to use permanent state forests for public-service projects under the Land Compensation Act, such as railroad service, etc., it shall be deemed that the ownership or right to use permanent state forests cannot be acquired through the adjudication under the Land Compensation Act without following reasons.

1) Article 7(1) of the State Property Act provides that no person shall use or take profits from State property without following procedures and methods prescribed by this Act or other Acts.

Article 6(2)4 of the State Property Act provides that “permanent state forests shall be managed and used only in accordance with the procedures and methods stipulated in the State Property Act.” Furthermore, permanent state forests shall not be disposed of or re-divided into non-permanent state forests unless it is no longer necessary for the public interest to be preserved, unless they are disposed of or re-divided into non-permanent state forests.

2) Furthermore, even in cases where it is necessary to use permanent state forests for public works under the Land Compensation Act, such as railroad service, etc., such use shall obtain “use permit” for permanent state forests to the extent that it is not necessary or hindered for the purpose of preserving permanent state forests, and where such use hinders the purpose of preserving permanent state forests, such use shall be re-divided as non-permanent state forests only when it is necessary to use permanent state forests for public works under the Land Compensation Act, such as railroad service, etc., and shall take procedures to sell or exchange such permanent state forests. The State Forest Act does not stipulate any provision on the premise that it is possible to dispose of permanent state forests separately, or any provision on the determination on the use thereof is not permitted.

3) Article 27(1) of the State Property Act also provides that no administrative property shall be disposed of, except where it is intended to administer the property exchanged with public or private property as administrative property, or where it is intended to directly use the administrative property as administrative property to a local government that requires public or public use (Article 27(1)). Furthermore, the State Property Act only provides that an office of administration may grant permission for use of the administrative property only to the extent necessary for the performance of the preservation purpose (Article 30(1)). If the property is not used for administrative purpose, it is merely that the use thereof shall be abolished without delay (Article 40(1)1).

4) Meanwhile, the Land Compensation Act provides that if land, etc. is necessary for a public project, a project operator shall first proceed with the procedure for consultation with the landowner, etc. regarding the compensation for the land, etc. (Articles 16 and 26), and that a project operator may file an application for adjudication with the competent Land Tribunal only when the consultation is not reached or it is impossible to hold such consultation (Article 28(1)). This is premised on the authority of landowners, etc. to dispose of the relevant land, etc. on the premise that the State forest under the State Forest Act has the right to manage and use the relevant land, etc. at will only in accordance with the procedures and methods prescribed by the State Forest Act. However, a state forest under the State Forest Act is only able to be managed and used in accordance with the State Forest Act, and

5) Therefore, in a case where an implementer of a public project needs to use a permanent state forest for its business, it is reasonable to deem that the ownership or right to use the permanent state forest cannot be acquired by the adjudication pursuant to the Land Compensation Act, instead of complying with the procedures and methods prescribed by the State Forest Act.

B. As to non-permanent state forests

Furthermore, even in cases where the executor of a public service needs to use non-permanent state forests for the public service under the Land Compensation Act, such as railroad service, etc., it shall be deemed that the ownership or the right to use the non-permanent state forests cannot be acquired through the adjudication under the Land Compensation Act without prioritizing the measures to acquire ownership or the right to use in accordance with the procedures and methods prescribed by the State Forest Act

1) Since non-permanent state forests do not need to be preserved as state forests, and fall under “general property” under the State Property Act, the Administrator of the Korea Forest Service may sell, exchange, and lend land in accordance with the standards prescribed by Presidential Decree in cases where state forests are used for public projects under the Land Compensation Act (Article 7(1) and Article 20(1)1 and (2) and Article 21(1) of the State Property Act).

2) Contracts that sell, exchange, and lend State-owned general property constitute “private law contracts” with the State as a private economic entity (see, e.g., Supreme Court Decision 9Da61675, Feb. 11, 2000). Therefore, an application by a project implementer for the conclusion of a contract for sale, exchange, and lending of non-permanent state property under the State Forest Act has the substance of “consultation procedure”, which serves as the premise for an application for adjudication under the Land Compensation Act. Therefore, if a project implementer immediately applied for a ruling without filing an application for the above sale, exchange, or lending contract, then the project implementer’s application for adjudication shall be deemed unlawful and its subsequent rulings shall also be deemed unlawful (see, e.g., Supreme Court Decision 93Nu2148, Aug. 13, 1993).

3) Therefore, where an implementer of a public project needs to use a non-permanent state forest for its project, he/she shall first apply for the lawful conclusion of a contract for sale, exchange, and loan by meeting the requirements stipulated in the State Forest Act. Nevertheless, the Administrator of the Korea Forest Service may exceptionally file an application for adjudication pursuant to the Land Compensation Act only when he/she illegally refuses to conclude the

4. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower judgment reveals the following circumstances.

A. 19 lots forest land in the annexed list of the judgment of the first instance (hereinafter “instant state forest”) is a state forest managed by the Minister of the Korea Forest Service with the jurisdiction of the Dong-gun, and one of them (123m2, 000 m2,000 m25 m2,000 m2,000 m2,000 m2,000 m2,000 m2,00

B. The Korea Rail Network Authority is the implementer of the original state-owned railroad construction project (hereinafter “instant railroad construction project”), and entered into a loan agreement with the Minister of the Korea Forest Service to use one parcel of the said non-permanent state-owned forest for the instant railroad project, and has used the rent from December 10, 2012 to November 30, 2017.

C. Meanwhile, the Korea Rail Network Authority requested consultation with the Minister of the Korea Forest Service on the premise that “In order to use 18 parcels of the above permanent state forest for the instant railroad service,” but did not reach an agreement, it applied for the adjudication on the use of 19 parcels of the instant state forest including one parcel of non-permanent state forest leased and used as above to the Defendant, who is the competent Land Tribunal.

D. On October 13, 2016, the Defendant accepted the application for adjudication by the Korea Rail Network Authority, and rendered a corrective ruling to the effect that “the Korea Rail Network Authority shall use the State forest in this case for the instant railroad enterprise and compensate for losses at KRW 474,790. The starting date of use shall be December 6, 2016, and the starting date of use shall be the starting date of use shall be the starting date of use, and the starting date of use shall be the starting date of use shall be the ending date of the facility.” On December 8, 2016, on the ground that the name of the owner and the lot number were erroneously stated in the instant decision on use in the attached list of the first instance judgment (hereinafter collectively referred to as “instant decision on use”).

5. Examining the above circumstances in light of the relevant statutes and legal principles as seen earlier, the following determination is possible.

A. In the case of 18 parcels of permanent state forests among the instant state forests, where the Korea Rail Network Authority needs to use the instant state forests for railroad projects, it shall obtain permission to use the relevant state forests in accordance with the procedures and methods prescribed by the State Forest Act, or shall take procedures for selling or exchanging non-permanent state forests after reclassified them into non-permanent state forests.” In order to avoid the application of such procedures, the ownership of or the right to use the permanent state forests shall not be acquired through the adjudication pursuant to the Land Compensation Act.

B. One parcel of non-permanent state forests among the state forests of this case, the Korea Rail Network Authority had already acquired a right to use by entering into a loan agreement with the relevant management authority at the time of the application for the ruling on the use of the state forests of this case, and there was no special circumstance that the relevant management authority expressed its intent not to extend the term of the loan agreement until the continuation of railroad facilities. Therefore, it constitutes a case where the requirements for application for adjudication

C. Therefore, the lower court’s determination that the instant ruling was unlawful is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal doctrine on the management and use of state forests or the application

6. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)