2012Na3635 Compensation for losses

Silve Co., Ltd.

Korea

Seoul Central District Court Decision 201Gahap113320 Decided March 29, 2012

March 12, 2013

May 2, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 646,297,530 won an interest rate of 6% per annum from May 24, 2010 to the delivery date of a copy of the complaint of this case, and 1) 20% per annum from the next day to the day of complete payment (the plaintiff shall be deemed to have claimed interest from May 24, 2010 on KRW 81,367,460 from the first instance court to the day of complete payment, and finally amended the claim of this case as above.)

2. Purport of appeal

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 64,909,396 won and 811,367,460 won with 8% interest per annum from May 24, 2011.

1. Basic facts

The reason why the court should explain this part is that "the land right of this case" is added to "the land right of this case" in Section 7 of Section 2 of the judgment of the court of first instance, and "the five and twenty-four measures" in Section 13 are added to "the measure of this case", and it is identical to the corresponding part of the judgment of the court of first instance, so it is accepted as it is in accordance with Article 420 of the Civil Procedure Act.

2. Determination as to the claim for damages

A. The plaintiff's assertion

The instant measure is a procedurally unlawful restriction on the exercise of property rights, such as real estate development projects, in the Gsung Industrial District by an administrative disposition of the Minister of Unification, not in the form of a law or a presidential emergency measure or an emergency order, and is in violation of the principle of trust protection against trust established through the defendant's series of measures concerning investment in the Gsung Industrial District for a long time, and is defective as a means inappropriate for achieving the purpose of North Korean sanctions, and has neglected to compensate the damage of the plaintiff, etc. under Article 26 (1) of the Inter-Korean Exchange and Cooperation Act and Article 39 (2) of the Foreign Trade Act, and thus, it constitutes an unlawful act by intention or negligence, and even if the instant measure is a governing act, it is subject to judicial review.

Therefore, the defendant is liable to compensate the plaintiff for damages that the investment amount of KRW 646,297,530 (land use right amounting to KRW 546,297,530 + design cost of KRW 100,00,000) invested by the plaintiff in order to secure the land use right of this case and build a new building, and the damages that the plaintiff suffered due to the measure of this case, namely, the losses that the above investment amount was no longer utilized due to the measure of this case, 6% per annum under the Commercial Act from May 24, 2010 to the delivery date of a copy of the complaint of this case from the next day to the day of complete payment, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day

B. Determination

Article 2 (1) of the State Compensation Act provides that when a public official inflicts damage on another person by intention or negligence in the course of performing his/her duties, the State shall compensate for such damage. A public official's act does not require that it is an individual and specific administrative disposition, and even if he/she is a governing act, he/she shall not always be able to fulfill the obligation of compensation under the State Compensation Act (Therefore, the defendant's assertion

However, as a matter of course, the exercise of public authority is allowed to infringe on the rights of the people in accordance with certain requirements and procedures prescribed by the Act, which entails infringement on the rights of the people, and thus, the exercise of public authority cannot be immediately deemed unlawful and the degree of such infringement cannot be deemed to have been recognized as a matter of course due to the significant degree of infringement. Therefore, in addition to the infringement of the rights and legal interests, the illegality of Article 2(1) of the State Compensation Act should be determined depending on whether the exercise of public authority violates the legal obligation of public officials, which is a norm of conduct to be

Furthermore, even if a public official has a legal obligation in the course of performing his duties, if the obligation is solely for the public interest, or if the obligation is not for the internal obligation of administration, etc. to be borne by an individual citizen, the violation of the obligation cannot be said to be an illegal act that causes damages under the State Compensation

In the instant case, even if the statement in the evidence Nos. 4, 39, 40, 45, and 47 was integrated, it is insufficient to recognize that the measure of this case was an unlawful act in violation of the official duty of the public official borne by the Ministry of Unification in response to the astronomical crisis. Rather, in full view of the overall purport of each of the above evidence evidence, the measure of this case was conducted under the judgment that the protection of the lives and property of the people and strong sanctions against North Korea was necessary in response to the political and military crisis of the nation, such as the astronomical crisis. Considering the characteristics of inter-Korean relations, the policies on national security were an area where the highest level of political and military judgment was required among various policy fields of the nation, and the above measures should have been decided and implemented promptly, it should be deemed as an act entirely in accordance with the public interest purpose, and it cannot be said that the above measures are unlawful under Article 2(1) of the State Compensation Act.

Therefore, we cannot accept the above assertion of the Plaintiff on a different premise.

3. Determination on claims for compensation for losses

A. The plaintiff's assertion

Even if the measure of this case is lawful, the plaintiff's damage caused by the measure of this case is a special sacrifice for the restriction of property rights due to public necessity as provided by Article 23 (1) of the Constitution. Even if there is no separate compensation provision, the plaintiff can immediately exercise the right to claim compensation for losses pursuant to Article 23 (3) and (1) and Article 11 (1) of the Constitution or by analogical application of Article 38 (1) of the Plant Protection Act. Thus, the defendant shall pay compensation for the loss suffered by the plaintiff as stated in the purport of the claim.

B. Determination

Comprehensively taking account of the overall purport of the arguments in the evidence evidence Nos. 2, 3, 4, 39, 40, 45, and 47, the existing companies located in the GIC after the measure of this case continued to engage in production activities until the time of closing of pleadings in the trial. The public officials belonging to the Ministry of Unification, as the Plaintiff, secured the right to use land within the GIC prior to the measure of this case and prevented them from filing an application for construction work commencement and for bringing-in of materials for this purpose even if a building permit was granted, is recognized. Accordingly, it is recognized that the Plaintiff secured the right to use land of this case and has never been fully

However, due to the measure of this case, the Ministry of Unification is merely an anti-private effect resulting from the prohibition of new expansion of investment and expansion of investment as a way to minimize the damage of the companies that have already been engaged in business activities by entering the GIC, but it is difficult to view it as the Plaintiff’s special scarcity due to public necessity.

Even if it is different from domestic affairs, Article 23 (3) of the Constitution provides that "the expropriation, use or restriction of property rights due to public necessity and compensation therefor shall be made by law, but due compensation shall be paid." Thus, the above provision alone does not have the effect of causing a direct claim for compensation to the party against whom the expropriation, use or restriction of property rights due to public necessity is made.

Furthermore, relevant laws, such as the Health Care and Support Act, do not provide grounds to restrict business activities or the exercise of land rights in an open industrial zone at a level of security or national interests, or a claim for compensation for such restriction. Even in accordance with the provisions of Articles 12-2 through 12-4 of the Gisung Support Act (amended by Act No. 10189, Mar. 26, 2010), the Government shall provide for a compensation order under Article 12-2 through 12-4 of the Gisung Support Act (amended by Act No. 10189, Mar. 26, 2010), where the local traffic of the enterprise in the Gisung Industrial Zone continues to be obstructed for more than one month, or where most activities of the enterprise in the Gisung Industrial Zone are impossible for more than one month (Article 9-2 of the Enforcement Decree of the Gisung Support Act), and thus, it is difficult to view that the Ordinance of the South Korean Industrial Disease Control Act and Article 36(1)6(3) of the Ki.

Therefore, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is (the plaintiff has reduced the plaintiff's appeal in the first instance trial). Thus, the plaintiff's appeal is remaining within the scope of reduced claim.

C) It is so decided as per Disposition.

【Presiding Judge】

Judges Lee Jong-chul

Judges are accommodated in judges;

1) Since the principal and its damages for delay are not claimed, but the amount equivalent to the interest on the investment amount is claimed, the termination date “not later than the date of full payment”

of this case, the claim seeking interest shall be made until the measure in this case is removed.

2) This constitutes an annual interest rate of 8% per annum from May 24, 2010 to 811,367,460 won invested by the Plaintiff.

3) The Gender Equality Support Act

Article 3 (2) The Government may consistently promote the development of the GIC and the management activities of enterprises based on the economic principles and the autonomy of the enterprises.

Efforts shall be made to create a record-based environment and to support it.

4) The Gender Equality Support Act

Article 12-2 (Support for Management Normalization of Investment Companies in Geosung Industrial Complex)

(1) If the passage has been interrupted for a considerable period or the project of the GIC has been suspended for a considerable period due to the measures of the inter-Korean authorities, the Government shall

Articles 12-3 and 12-4, as prescribed by Presidential Decree, in order to support investment companies in their business normalization.

necessary measures, such as assistance, may be taken.

(2) The Minister of Unification shall, if deemed necessary for cases under paragraph (1), normalize the management of invested companies in the Geo Industrial Complex to the relevant administrative agencies.

support may be requested.

Article 12-3 (Financial Support to Investment Companies in the New Industrial Complex) The Government shall, where any cause referred to in Article 12-2 (1) occurs, make investments in the new industrial zone.

In order to stabilize business management, etc., the Inter-Korean Cooperation Fund under the Inter-Korean Cooperation Fund Act shall be supported, or small and medium enterprises under the Small and Medium Enterprises Promotion Act.

A business start-up and promotion fund may be used.

Article 12-4 (Financial Support for Relocation of Investment Enterprises in the New Industrial Complex) The Government shall produce investments in the new industrial zone on the grounds of Article 12-2 (1).

Where a facility is to be relocated to the Republic of Korea, preferential support may be provided pursuant to the Small and Medium Enterprises Promotion Act.