Whether Article 46(2) of the former Land Expropriation Act (amended by Act No. 4483 of Dec. 31, 1991) and Article 10(1)1 of the Public Notice of Values and Appraisal of Lands, etc. Act violate Article 23(3) of the Constitution

Article 46(2) of the former Land Expropriation Act (amended by Act No. 4483, Dec. 31, 1991) and Article 10(1)1 of the Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 4483, Dec. 31, 1991) do not violate Article 23(3) of the Constitution declaring the complete compensation principle

Article 46(2) of the former Land Expropriation Act (amended by Act No. 4483, Dec. 31, 1991); Article 10(1)1 of the Public Notice of Values and Appraisal of Lands, etc. Act; Article 23(3) of the Constitution

Supreme Court Decision 91Nu4324 delivered on March 13, 1992 (Gong1992, 1317) 93Nu2780 delivered on July 13, 1993

Plaintiff-Appellee et al., Counsel for the plaintiff-appellee

The Central Land Tribunal and one other, the defendants' attorney Gangwon-gu et al.

Seoul High Court Decision 91Gu24009 delivered on December 9, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

(1) On the first ground for appeal

In short, Article 46 (2) of the former Land Expropriation Act (amended by Act No. 4483, Dec. 31, 1991; hereinafter referred to as the “former Land Expropriation Act”) and Article 10 (1) 1 of the Public Notice of Values and Appraisal of Lands, etc. (hereinafter referred to as the “Public Notice of Values and Appraisal of Lands, etc.”) which provides for the calculation of the compensation amount based on the officially announced value of land is unconstitutional, and Article 23 (3) of the Constitution declaring the complete compensation principle is unconstitutional, and the lower court calculated the compensation amount based on each provision of the above Act which is invalid as unconstitutional, thereby violating the Constitution.

Therefore, 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 a reasonable compensation shall be paid." This Constitution provides that not only the grounds for the right to claim compensation but also the provisions of the law concerning the standards and methods of compensation shall be deemed as reservation of the provisions of the law. The provisions of the former Land Expropriation Act and the Public Notice of Land Price Act shall be deemed as the provisions of the law that are reserved by the Constitution.

In addition, the term "justifiable compensation" refers to a complete compensation that shall complete the objective property value of the expropriated property in principle. However, since the price formed through speculative transactions cannot be viewed as a normal property value, it does not violate the principle of complete compensation by excluding it. Development gains accrued due to the increase in land price due to the implementation of public works are the nature that ultimately should be attributed to all the people, it cannot be deemed as the objective value of the expropriated land included in the scope of complete compensation or the loss of the inmate.

With respect to the reference land, which is selected by the Minister of Construction and Transportation, from among lands recognized as the current use of land or the surrounding environment, and generally similar natural and social conditions, the Minister shall investigate and evaluate the reasonable price as of the basic date each year, and shall be published after deliberation by the Land Appraisal Commission under his jurisdiction (Article 4(1) of the Land Price Disclosure Act). In this case, the term “reasonable price” means the price which is reasonably recognized as reasonable if a free transaction takes place with respect to the land concerned is conducted (Article 2 subparag. 2 of the Land Price Disclosure Act). Other standards and procedures for the assessment of the value of the land under the Land Price Disclosure Act are deemed appropriate to assess the objective value of the land as of the basic date. Furthermore, since the development gains are excluded by calculating the compensation amount by making the use plan of the land in accordance with the relevant Acts and subordinate statutes from the basic date to the ruling date, the land price fluctuation rate, wholesale inflation rate, etc. of neighboring land unrelated to the relevant region, the provisions of Article 46(2) of the former Land Expropriation Act, which shall be calculated based on the officially announced price

In addition, if the officially announced value that is specifically published each year does not reflect the reasonable price of the basic date, it shall be deemed not only a high-priced case, but also a case where it is evaluated at a low price, and if it is possible to correct it in accordance with the procedure for raising an objection under Article 8 of the Land Price Disclosure Act, if it is possible to correct it by the procedure for raising an objection under Article 8 of the Land Price Disclosure Act, it may be adjusted by the method of correction under Article 46 (2) of the former Land Expropriation Act, such as considering the normal transaction price of neighboring similar land in assessing the amount of compensation, so the provisions of the Land Expropriation Act and the Land Price Disclosure Act that make the amount of compensation calculated by the officially announced value cannot be deemed to violate Article

Therefore, there is no reason to discuss this part on the premise that Article 46 (2) of the former Land Expropriation Act and Article 10 (1) 1 of the Public Notice of Land Price Act violate the Constitution.

(2) On the second ground for appeal

According to the reasoning of the judgment below, the court below dismissed the plaintiff's claim on the ground that the court below's appraisal based on the objection ruling of this case did not disclose the specific reasons or properly compared with the reference land of this case and the goods of this case to be expropriated. Thus, the court below rejected the plaintiff's claim on the ground that the amount of compensation for losses is calculated based on the appraisal result of the non-party's appraiser with detailed explanation that the amount of compensation for losses can be objectively accepted, and that the amount of compensation calculated by the court below does not exceed the amount of compensation for losses stipulated by the objection ruling.

In light of the records, the above fact-finding and judgment of the court below are acceptable as they are, and there is no illegality such as the theory of lawsuit, since it cannot be deemed that the result of appraisal by the appraiser of the court below as to the comparison of goods and services is lacking fairness and rationality. This part of the opinion is without merit

(3) Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)