[1] Whether a company that implements a public project can acquire land necessary for the project by means of a consultation for acquisition under the Public Compensation for Losses even after the public project approval was publicly announced (affirmative)

[2] The case holding that the provisions of the Public Compensation for Loss and Compensation Act shall apply to the exercise of the right to repurchase by the landowner, on the grounds that the entrepreneur acquired the land by consultation after the public announcement of the project approval, but instead did not go through the consultation procedure under the Land Expropriation Act, and the exercise of the right to repurchase by the landowner was followed by the procedure stipulated in the Public Compensation for Loss and Compensation of Losses Act

[3] The method of exercising the repurchase right under Article 9 of the Special Act on the Compensation for Public Loss and Compensation of Losses, and whether the court may increase or decrease the repurchase price in the civil procedure (negative), and the nature of the lawsuit against the project implementer regarding an increase or decrease of the repurchase price against the repurchase right holder under Article 75-2 (2) of the

[1] The Land Expropriation Act or the Public Land Expropriation Act does not prohibit the entrepreneur from acquiring the land by a method other than that stipulated in the Land Expropriation Act, and even if the project approval is publicly announced, there is no reason to prohibit the entrepreneur from acquiring the land by a contract established by free will between the parties without complying with the restriction under the provisions of the Land Expropriation Act, and even if there is no reason to prohibit the entrepreneur from acquiring the land by consultation after the public announcement of the project approval, the entrepreneur may acquire the land necessary

[2] The case holding that the provisions of the Public Compensation for Loss and Compensation Act shall apply to the exercise of the right to repurchase by the landowner, on the grounds that, although the entrepreneur acquired the land by consultation after the public announcement of the project approval, it did not go through the consultation procedure under the Land Expropriation Act, and it did not go through the procedure prescribed in the Public Compensation for Loss and Compensation Act, the entrepreneur acquired the land through consultation in accordance

[3] According to Article 9(1) and (3) of the Special Act on Compensation for Public Loss, Article 7(1) and (3) of the Enforcement Decree of the Land Expropriation Act, and Articles 73 through 75-2 of the Land Expropriation Act, where the requirements for repurchase arise within the repurchase period, even if the price of the land subject to repurchase has been significantly lowered or increased compared to the time of acquisition, the repurchase right holder may seek the difference between the repurchase price and the amount equivalent to the compensation amount paid at the time of acquisition of the land by unilaterally paying only the amount equivalent to the compensation amount received to the project operator in advance and unilaterally declaring his/her intent of purchase. The exercise of the repurchase right pursuant to Article 9 of the Special Act on Compensation for Public Loss and Compensation for Land, etc. cannot be applied mutatis mutandis or analogically to the exercise of the repurchase right pursuant to Article 71(5) of the Land Expropriation Act. A lawsuit filed by the project operator against the repurchase right holder pursuant to Article 75-2(2) of the Land Expropriation Act is premised on the change of the repurchase price in public law.

[1] Articles 1 and 2 of the Special Act on the Compensation for Public Loss; Articles 1, 3, 4, 16, 25, and 25-2(1) of the Land Expropriation Act / [2] Article 9(3) of the Special Act on the Compensation for Public Loss; Articles 25, 25-2, and 71(5) of the Land Expropriation Act; Article 15-2(1) of the Enforcement Decree of the Land Expropriation Act / [3] Article 9(1) and (3) of the Special Act on the Compensation for Public Loss; Articles 7(1) and (3) of the Enforcement Decree of the Land Expropriation Act; Articles 7(5), 73, 74, 75, and 75-2(2) of the Land Expropriation Act; Article 3 subparag. 2 of the Administrative Litigation Act

[1] Supreme Court Decision 98Da60422 delivered on August 22, 200 (Gong200Ha, 1987) / [3] Supreme Court Decision 92Da7832 delivered on June 23, 1992 (Gong1992, 2257) Supreme Court Decision 93Da2241 delivered on August 24, 1993 (Gong1993Ha, 2610), Supreme Court Decision 93Nu1725 delivered on May 24, 1994 (Gong194Ha, 1843), Supreme Court Decision 9Du3416 delivered on November 28, 200 (Gong201, 173)

In Thai-si (Attorney Lee In-bok, Counsel for defendant-appellant)

Defendant (Seo Law Firm, Attorneys Park Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2000Na50994 delivered on March 21, 2001

The judgment below is reversed, and the plaintiff's appeal is dismissed. The litigation costs after the appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The summary of fact-finding and judgment of the court below is as follows.

A. Facts of recognition

On January 18, 1990, the Plaintiff prepared an implementation plan for urban planning projects in order to create a housing site on a group of land including the instant land owned by the Defendant, and obtained authorization from the Gangwon-do Governor, and publicly notified the approval of an implementation plan for urban planning projects on the 24th of the same month by the Gangwon-do Governor, the Plaintiff purchased the instant land from the Defendant on February 27, 199, and completed the registration of ownership transfer under the name of the Plaintiff on August 12, 1991.

In addition, on January 11, 1994, the Plaintiff reported the division execution of the instant land, etc., and subsequently abolished the division execution report on the instant land on June 8 of the same year, and reported the completion of the project on October of the same year with respect to the housing site development project.

Accordingly, the defendant filed a lawsuit against the plaintiff on December 16, 1997 to file a claim for the transfer registration of ownership of the land of this case with the Chuncheon District Court Young-gu branch. The defendant asserted that the land of this case was purchased by consultation for the purpose of using the land of this case as the original road site, but it was no longer necessary for the purpose of the original project as a result of the completion of the purpose project, and thus, the right of repurchase is exercised pursuant to Article 9 of the Special Act on Special Cases concerning the Compensation for Public Loss (hereinafter "the Special Act"), and deposited the amount equivalent to the compensation of this case on March 19, 198, and deposited the amount equivalent to the compensation of this case on September 4, 1998. The decision of this case became final and conclusive around that time. The defendant completed the transfer registration of ownership on the land of this case under the name of the defendant on October 8 of the same year, and sold the land of this case to the non-party on March 19, 1998.

B. Determination

The Plaintiff obtained approval from the Governor of Gangwon-do for an urban planning project implementation plan under the Urban Planning Act pursuant to Article 30 (2) of the same Act (amended by Act No. 6243 of Jan. 28, 2000). Thus, even if the Plaintiff purchased the instant land from the Defendant on February 27, 1990, it is in accordance with the procedures of the Land Expropriation Act, and the exercise of the right to repurchase on the instant land is in accordance with Article 71 of the Land Expropriation Act.

Unlike the procedure for increasing the redemption price under the Land Expropriation Act, when the price of the land is significantly changed compared to the time of expropriation under Article 71(5) of the Land Expropriation Act, a public project operator or a repurchase right holder may file a claim with a court for an increase or decrease of such amount. In the event the price of the land subject to repurchase at the time of exercising the repurchase right is remarkably increased and the compensation exceeds the amount calculated by multiplying the compensation by the fluctuation rate of neighboring similar land, the compensation should be paid to the Plaintiff, a public project operator, who is the amount obtained by deducting the amount calculated by multiplying the compensation by the fluctuation rate of neighboring similar

However, by asserting that the Defendant filed a claim for ownership transfer registration by exercising a redemptive right on the instant land, the Plaintiff acquired the ownership of the instant land without paying a redemption price according to the increase in the price of the instant land without examining whether there was an increase in the price of the instant land. Therefore, without any legal ground, the Defendant obtained benefits equivalent to the remainder of the compensation deposited by the Defendant, which should have been paid to the Plaintiff at the time of exercising the said redemptive right without paying the redemption price. Accordingly, the Plaintiff suffered considerable property damage.

Therefore, the defendant should return to the plaintiff the balance after deducting the amount equivalent to the compensation deposited by the defendant from the redemption price as stated in its reasoning.

2. However, we cannot accept the judgment of the court below.

A. According to the provisions of Articles 1 and 2 of the Act on Special Cases Concerning the Acquisition of Land for Public Works Projects, a project operator who carries out a public project is entitled to acquire land, etc. necessary for the public project through consultation, and pursuant to the provisions of Articles 1, 3, 4, 16, 25 and 25-2 of the Land Expropriation Act, a project operator who carries out a public project shall consult with landowners and persons concerned in order to acquire rights to the land after the announcement of the project approval under the conditions as prescribed by the Presidential Decree. If an agreement is reached in the process, the land may be acquired through consultation. If an agreement is not reached or it is impossible to reach an agreement, the land shall be acquired through the method of expropriation by the competent Land Expropriation before the announcement of the project approval. Thus, it is natural that the land can be acquired through consultation or expropriation under the Land Expropriation Act after the announcement of the approval of the project. However, even after the announcement of the project approval by the Land Expropriation Act or the Land Expropriation Act, there is no reason to prohibit a project operator from acquiring the land through consultation.

B. In the instant case, the Plaintiff’s acquisition of the instant land owned by the Defendant was made after the public announcement of the project approval. However, based on the fact that the Plaintiff acquired the instant land on 36 parcels of land, including the instant land in accordance with the procedure stipulated under the Act on Special Cases concerning the Purchase of Land, etc., the Defendant recognized that the said final judgment lawfully exercised the right to repurchase under the Act on Special Cases concerning the Purchase of Land, etc., and became final and conclusive as the Plaintiff did not object to this judgment. Article 25(1) of the Land Expropriation Act provides that a business operator shall consult with the landowner and person concerned as prescribed by the Presidential Decree in order to acquire rights to the said land after the public announcement of the project approval. Article 15-2(1) of the Enforcement Decree of the Land Expropriation Act provides that a business operator shall immediately determine and notify the land owner and person concerned of specific matters concerning the consultation, and that there was no evidence that the Plaintiff notified the Defendant of such matters to the Defendant, according to the relevant provisions such as the Land Expropriation Act and Article 71(5).

C. According to Article 9(1) and (3) of the Special Act on the Settlement of Land, etc., Article 7(1) and (3) of the Enforcement Decree of the same Act, and Articles 73 through 75-2 of the Land Expropriation Act, where the requirements for repurchase arise within the repurchase period, even if the price of the land subject to repurchase has been significantly lowered or increased compared with the time of acquisition, the repurchase right holder may unilaterally pay to the project operator the amount equivalent to the compensation received at the time of acquisition of the land subject to repurchase, and thus the repurchase is established regardless of the project operator’s intent. The exercise of the repurchase right pursuant to Article 9 of the Special Act on the Settlement of Land cannot be governed by the provisions of Article 71(5) of the Land Expropriation Act or by applying mutatis mutandis the provisions of Article 75-2(2) of the Land Expropriation Act. A lawsuit against the repurchase right holder may seek the difference between the repurchase price and the amount equivalent to the compensation paid at the time of acquisition of the land subject to repurchase from the project operator (see, e.g., Supreme Court Decision 2008Du392.

Therefore, the Plaintiff, who is the project implementer, should seek an increase in the redemption price against the Defendant, who is the repurchase right, through such procedures, and the difference between the amount claimed by the Plaintiff to be increased and the amount deposited by the Defendant as the repurchase price, may not be claimed as a means of civil procedure, on the ground that the Defendant unjust enrichment without any legal ground.

Unlike this, the judgment of the court below is erroneous in the misapprehension of legal principles as to the acquisition through consultation and exercise of the right of repurchase under the Act on Special Cases and the Land Expropriation Act.

The part of the grounds of appeal assigning this error is with merit.

3. Therefore, the judgment of the court below is reversed, and this case is sufficient to be tried in this court, and therefore, it is reasonable to dismiss the plaintiff's claim. However, as to the judgment of the court of first instance that rejected the lawsuit of this case, the plaintiff's appeal is dismissed by maintaining the judgment of the court of first instance that is not favorable to the plaintiff in accordance with the principle of prohibition of disadvantageous alteration as long as only the plaintiff appealed, and the costs of the lawsuit after the appeal are to be borne by the losing party.

Justices Yoon Jae-sik (Presiding Justice)