2017Du30825 The increased amount of compensation for confinement, etc.

Mack Ro-si (Mack-si) Mack Mac-si

Law Firm Maritime Affairs Co., Ltd.

Attorneys Lee Ho-kon et al.

Mansan Inc.

Attorney Hy Byung-jin et al., Counsel for the defendant-appellant

Seoul High Court Decision 2016 - 36781 Decided November 15, 2016

April 7, 2017

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

After recognizing the facts as indicated in its reasoning, the lower court determined that the Defendant succeeded to the rights and obligations of the project operator, including the obligation to file an application for adjudication on the instant land and obstacles, from the Mayang-Co., Ltd. (hereinafter referred to as “Mayang-Co., Ltd.”), the former project operator of the instant project.

In light of the relevant laws and records, such determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the succession to the status

2. Regarding ground of appeal No. 2

A. According to Article 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), where an agreement has not been reached after a public announcement of project approval, a landowner and person concerned (hereinafter “land owner, etc.”) may request a project operator to file an application for adjudication in writing. (Paragraph (1)); a project operator shall file an application for adjudication with the competent Land Tribunal within 60 days from the date on which the request is made; (2) if a project operator files an application for adjudication after the lapse of the period, the amount calculated by applying the statutory interest rate under Article 3 of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “additional payment”) for the delayed period in addition to the compensation (hereinafter “adjudication compensation”) adjudicated by the competent Land Tribunal.

Meanwhile, when a project operator fails to pay or deposit a compensation for adjudication by the commencement date of expropriation, the adjudication shall lose its effect (Article 42(1) of the Land Compensation Act), and the project operator’s application for adjudication shall also lose its effect (see Supreme Court Decision 84Nu158, Mar. 10, 1987). A project operator shall again apply for adjudication. If a landowner, etc. has already filed a claim for adjudication before the adjudication becomes effective, the application shall be filed within 60 days from the date the adjudication becomes effective, and if the application for adjudication has already been filed after the expiration of the period, additional dues shall be paid for the delayed period (see Supreme Court Decision 2012Du1287, Feb. 26, 2015).

In addition, if the adjudication becomes invalidated as above, it is not necessary to take the procedure for consultation on compensation again (see the above 2012Du11287), but in view of the fact that the Land Compensation Act separates the provisions on late payment from the provisions on compensation for losses suffered by landowners, etc. (see Article 42(2) and (3) of the Land Compensation Act), additional charges for delay shall be deemed to have the nature of compensating for losses incurred by the landowners, etc. without filing an application for adjudication within a fixed period of time. Therefore, even though the project operator did not file an application for adjudication within 60 days after the adjudication becomes effective, if there are special circumstances where the delay cannot be deemed to have been delayed, additional charges shall not occur during the pertinent period. Accordingly, it is reasonable to deem that the consultation is in such cases during the period in which the consultation was concluded following the agreement between the landowner, etc. and the project operator on the procedure for consultation on compensation after the invalidation of the adjudication.

B. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

1) On April 9, 2010, the Plaintiff filed an application for adjudication of expropriation with respect to the land and obstacles owned by the Plaintiff located within the instant project zone with respect to Mayang, which was the previous project operator of the instant project. Accordingly, the Plaintiff filed an application for adjudication of expropriation on August 23, 2010 (hereinafter “the first adjudication of expropriation”) but the first adjudication of expropriation was made on August 23, 2010, but the first adjudication of expropriation was invalidated due to the failure to pay or deposit the adjudication compensation by September 23, 2010 as set forth in the first adjudication of expropriation (hereinafter “the first adjudication of expropriation”).

2) On July 28, 2011, the project implementer of the instant project was changed to the Defendant pursuant to the development plan of the general industrial complex and the announcement of amendment to the implementation plan of the instant general industrial complex (No. 2011 - 200 of the Gyeonggi-do Notice). The Defendant sent an official document to landowners, etc., including the Plaintiff, requesting the recommendation of the compensation schedule and the appraisal business entity. On September 19, 2011, the “Spool 2 International Industrial Complex Countermeasures Committee (hereinafter “Non-Subrogation”) comprised of landowners, etc. in the instant project area, concluded a compensation business agreement with the land owner, etc. (hereinafter “Non-Subrogation”). According to the above compensation business agreement, according to the contents of the said compensation business agreement, the Defendant is scheduled to select one appraiser and undergo appraisal and assessment procedures by selecting one appraiser, and then, the Defendant again filed an application for consultation with the appraisal corporation from November 1, 2011 to October 16, 2016.

C. Examining the above facts in light of the legal principles as seen earlier, the first adjudication on expropriation became null and void since Mayang-si, a previous project operator, applied for the adjudication on expropriation in accordance with the Plaintiff’s request for the adjudication on expropriation, but failed to pay or deposit the adjudication by the commencement date as determined by the said adjudication, in principle, the Defendant, who succeeded to the rights and obligations of the project operator of this case, did not need to follow the procedures for consultation with the landowner, etc., in principle. Nevertheless, in light of the developments leading up to the conclusion of the agreement and the contents of the agreement, etc., which newly became a project operator of this case, after requesting the landowner, etc. to provide a notice on the compensation schedule and the recommendation of appraisal business operator, the Defendant and the landowner, etc., to enter into the compensation agreement with the non-performance of this case, after the invalidation of the first adjudication on expropriation. If such agreement has been concluded, it may be deemed that the Defendant, etc. again entered into an agreement with the landowner, etc., on September 9, 201

19. Until the expiration date of the agreed re-consultation period or the actual re-consultation ended, it cannot be said that the friendly weather or the Defendant delayed the application for adjudication, and thus, the additional dues under Article 30(3) of the Land Compensation Act do not accrue during that period.

Therefore, the lower court should further examine the specific details and contents of the agreement, the subsequent implementation process, and the details of the Plaintiff’s participation in the agreement between the Defendant and the Defendant, and further examine whether it can be deemed that an agreement was reached between the Plaintiff and the Defendant to undergo re-consultations based on the said compensatory work agreement, etc.

It should have been determined on the scope of additional charges to be borne by the Defendant. Nevertheless, without further determination on these circumstances, the lower court determined that additional charges for delay shall accrue from the time when the first expropriation ruling was invalidated and 60 days elapsed before the Defendant again filed an application for a new expropriation ruling. In so determining, the lower court erred by misapprehending the legal doctrine on the amount of the delayed application for adjudication under Article 30(3) of the Land Compensation Act by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il

Chief Justice Park Poe-dae

Justices Park Young-young and Park Young-young

Justices Kim Jae-in