In a case where: (a) the executor of a river environment improvement project filed an application for the adjudication of expropriation against A without agreement on the amount of farming compensation with Gap; (b) the adjudication of expropriation did not determine the amount of farming compensation; and (c) the compensation for land and obstacles was determined in the adjudication of expropriation; and (d) the Gap filed an objection to the payment of agricultural compensation calculated according to actual income; (b) the objection was dismissed on the ground that the method of calculating the amount of statistical income is reasonable; (c) the Gap filed a lawsuit seeking payment of farming compensation, etc.; and (d) whether Gap had gone through the adjudication procedure prior to filing the lawsuit for the amount of farming compensation, the case holding that Gap had completed the adjudication procedure on the portion of

The executor of the river environment improvement project filed an application for the adjudication of expropriation with the Party A by omitting the amount of farming compensation, which did not reach an agreement with the Party A, and applying for the adjudication of expropriation with respect to the land and obstacles. In the adjudication of expropriation, the Party A did not determine the amount of farming compensation and determined only the amount of farming compensation for the land and obstacles, and raised an objection for the payment of the amount of farming compensation calculated according to actual income, and dismissed the objection on the ground that the method of calculating the amount of statistical income is reasonable in the adjudication, and the Party A filed a lawsuit for the payment of the amount of farming compensation, etc. before the lawsuit of the amount of farming compensation for the said amount was filed.

According to Article 85(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), in order for a person who suffers losses to acquire or use land, etc. necessary for public works to claim compensation for losses, he/she shall undergo adjudication by the competent Land Tribunal prior to filing an administrative litigation. If an agreement on compensation for losses is not reached, a project operator may file an application for adjudication with the Land Tribunal (Article 28(1) of the Land Compensation Act), while a landowner may request a project operator to file an application for adjudication (Article 30(1) of the Land Compensation Act) (Article 30(1) of the Land Compensation Act). If a project operator has already filed an application for adjudication with the Land Tribunal, he/she cannot file an application for adjudication against the project operator, even if the project operator had omitted part of the compensation items at the time of filing an application for adjudication, it is reasonable to view that he/she could not file an application for adjudication on the compensation for losses with the Land Tribunal prior to filing an application for adjudication on the compensation for losses.

Articles 28(1), 30(1), 34, 50, 61, 77(2), and 85(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff (Attorney Lee B-hee, Counsel for the plaintiff-appellant)

Korea

Daegu District Court Decision 2014Guhap22214 Decided December 22, 2015

Daegu High Court Decision 2016Nu4226 decided October 28, 2016

Supreme Court Decision 2016Du58796 Decided July 20, 2018

November 2, 2018

1. The part of the judgment of the court of first instance against the plaintiff falling under the following monetary payment order shall be revoked.

The defendant shall pay to the plaintiff 5,309,450 won with 5% interest per annum from December 24, 2013 to November 30, 2018, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 150,628,314 won with 5% interest per annum from December 18, 2013 to the date of the instant judgment and 20% interest per annum from the next day to the date of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the part of the monetary additional payment order shall be revoked. The defendant shall pay to the plaintiff 106,313,732 won with 5% interest per annum from December 24, 2013 to the service date of a duplicate of the petition of appeal of this case, and 15% interest per annum from the next day to the day of full payment.

1. Scope of the judgment of this court;

The plaintiff filed an appeal against the whole judgment of the court of first instance, after the plaintiff filed a claim for the payment of compensation for land and obstacles and the amount of compensation for farming losses, which was partially accepted, and the remainder of the land and obstacles and the amount of compensation for farming losses was dismissed. The plaintiff appealed against the part of the judgment of the court of first instance before remanding the plaintiff's appeal. The plaintiff appealed against "the part of dismissal of an appeal against the portion of compensation for farming losses in the judgment of the court of first instance" in the judgment of the court of first instance, and the Supreme Court reversed the part against the plaintiff in the judgment of the court of first instance before remanding the plaintiff's appeal and ruled that "the part of the judgment of the court of first instance against the plaintiff concerning the compensation for farming losses in the judgment of the court of first instance before returning the case is reversed and remanded this part of

2. Details of ruling;

(a) Approval and public notification of the project;

- Project name: project for the improvement of the river environment in the semi-river commercial districts;

- Project implementer: Defendant (competent authority: Busan Regional Land Management Office)

- A public announcement of project approval: No. 2012-84, Feb. 8, 2012;

B. The Central Land Expropriation Committee’s ruling on expropriation on November 21, 2013 (hereinafter “instant adjudication on expropriation”)

- Subject to expropriation: Each land and obstacles listed in the “Compensation List” attached Table 1 owned by the Plaintiff.

- Commencement date of expropriation: December 23, 2013

- Compensation for losses: 580,803,360 won (i.e., land 412,275,760 won + 168,527,60 won with obstacles, and detailed details are as stated in the list of “compensation for expropriation” in attached Table 1)

- An appraisal corporation: A new appraisal corporation in the future of a corporation, and a verd appraisal corporation;

C. The Central Land Tribunal rendered an objection on March 20, 2014 (hereinafter “instant objection judgment”)

- Contents of adjudication: Dismissal of the portion of land and farming loss, and increase in KRW 10,567,400 for obstacles (detailed details are as stated in the Schedule of Compensation for Loss in Attached Form 1)

- An appraisal corporation: An appraisal corporation and a corporation;

[Reasons for Recognition] Facts without dispute, Gap evidence 1-2, Eul evidence 1-2, Eul evidence 1, 2-5-1, 2-2, and the purport of the whole pleadings

3. The plaintiff's assertion

Since the Plaintiff cultivated walk, etc. on the land subject to expropriation, the Defendant is obligated to compensate the Plaintiff for farming losses pursuant to Article 77(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”). The Plaintiff asserted payment of farming losses in filing an objection against the instant adjudication on expropriation, but the Plaintiff’s objection was dismissed by deeming that the instant adjudication on expropriation was groundless. As such, the Plaintiff filed the instant lawsuit following the adjudication under Article 85(1) of the Land Compensation Act.

Therefore, the defendant is obligated to pay to the plaintiff 5,309,450 won and damages for delay.

In the trial before remanding, the Plaintiff asserted that the amount of agricultural loss compensation should be calculated on the basis of actual income of agricultural crops pursuant to Article 48(2) of the former Enforcement Rule of the Land Compensation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 131, Oct. 22, 2014; hereinafter “Enforcement Rule of the former Land Compensation Act”). However, prior to remand, the judgment before remanding the case determined that the amount of KRW 5,309,450 calculated by the “total income of agricultural crops per annual farm unit cultivation area per Do” under Article 48(1) of the former Enforcement Rule of the Land Compensation Act was a legitimate agricultural loss compensation. The judgment of remand rejected the Plaintiff’s ground of appeal as to the method of calculating the amount of farming loss compensation, and the Plaintiff did not dispute the Defendant’s calculation of the amount of the Plaintiff’s agricultural loss compensation pursuant to Article 48(1) of the former Enforcement Rule of the Land Compensation Act, and withdrawn the previous assertion on the method of calculation.

4. Relevant statutes;

Attached Table 2 is as indicated in the "relevant Acts and subordinate statutes".

5. Determination

A. Legal doctrine

According to the Land Compensation Act, when any project operator fails to reach an agreement with the landowner and person concerned or is unable to reach an agreement, a project operator may file an application for adjudication with the competent Land Tribunal within one year from the date project approval is publicly announced (Article 28 (1)), as prescribed by Presidential Decree, and when consultation fails to yield agreement after a project approval has been publicly announced, the landowner and person concerned may file an application for adjudication with the project operator in writing, as prescribed by Presidential Decree (Article 30 (1) 2 and 4); matters to be adjudicated by the Land Tribunal are prescribed in the Land Compensation Act (Article 50 (1) 2 and 4); losses suffered by the landowner or person concerned due to the acquisition or use of land, etc. required for public works shall be compensated by the project operator (Article 61); compensation for losses shall be filed by individual landowner or person concerned; when an application for adjudication is filed by individual landowner or person concerned; when an application for adjudication is filed by the Central Land Tribunal under Article 8 (3) 4, an application for adjudication may be filed within 0 days from the date the Central Land Tribunal has received an objection (Article 64);

In order for a person who suffered agricultural loss due to public works to receive compensation for agricultural loss from a project operator pursuant to Article 77(2) of the Land Compensation Act, he/she may receive remedy pursuant to Articles 83 through 85 of the Land Compensation Act only when he/she is dissatisfied with the adjudication after undergoing the adjudication procedure stipulated in Articles 34 and 50 of the Land Compensation Act. Meanwhile, it is not allowed to immediately claim compensation for losses against the project operator without undergoing such adjudication procedure (see Supreme Court Decision 2011Du28721, Jun. 28, 2012, etc.).

Article 64 of the Land Compensation Act provides that compensation for losses shall be paid individually to landowners or persons concerned, except when the amount of compensation cannot be calculated individually. Thus, compensation shall not be paid for each object of expropriation or use, but for each individual of the persons to be compensated. Therefore, where a person who is compensated is dissatisfied with all or part of the objects of expropriation, he/she may file an administrative suit by asserting the grounds for objection (see Supreme Court Decision 97Nu11720, Jan. 28, 200, etc.).

The purport of the decision made by the competent Land Tribunal prior to filing an administrative litigation on the compensation for losses is to promote the self-control and administrative supervision of administrative authority by having an adjudication agency (administrative agency) conduct a reexamination, thereby seeking a thorough remedy for citizens' rights as a whole by processing the case in a professional and technical manner (see Supreme Court Decision 94Nu14100, Jun. 16, 1995, etc.).

Article 84 of the Land Compensation Act provides that the Central Land Tribunal shall deliberate on the illegality or illegality of the adjudication of expropriation, and does not restrict the deliberation of the grounds for objection stated in the written objection. Thus, barring any special circumstance, the validity of an objection is limited to the entire adjudication of expropriation, and the defect of the adjudication of expropriation which is not a ground for objection, as well as the unique reason for the adjudication of expropriation, may be asserted in litigation concerning the increase or decrease of compensation (see Supreme Court Decision 2010Du9457, Dec. 27, 2012, etc.).

(b) Whether he/she has been adjudicated prior to a lawsuit claiming the amount of farming loss compensation;

1) Facts of recognition

The following facts are recognized according to each of the above facts of recognition, the above quoted evidence, Gap evidence No. 5, and Eul evidence No. 3.

① Before the Defendant filed an application for adjudication of expropriation with the Plaintiff, the Plaintiff’s farming compensation amount calculated pursuant to Article 48(1) of the Enforcement Rule of the Land Compensation Act is KRW 55,309,450.

② The Defendant’s notification to the Plaintiff on November 16, 2012 is that “A request is made by the Plaintiff to submit an application for increase of actual income and an application for verification of transaction performance with respect to a request that the Plaintiff calculates and demands the amount of farming loss compensation based on the actual income prescribed in Article 48(2) of the Enforcement Rule of the former Land Compensation Act, for the two years prior to February 8, 2012 (from February 8, 2010 to February 7, 2012).”

The Defendant’s notification to the Plaintiff on December 31, 2012 is that “The Plaintiff’s application for verification of actual income for agricultural crops submitted by the Plaintiff does not conform to the standards for verification data that are “the standards for recognition of actual income for agricultural crops” (public notice of the Ministry of Land, Infrastructure and Transport), and the Plaintiff did not supplement the verification data even upon receiving a request for supplementation. Therefore, the amount of compensation shall be calculated based on the “unit price for compensation

③ On August 19, 2013, the Defendant filed an application with the Central Land Expropriation Committee for the adjudication of expropriation against the Plaintiff. The Defendant’s compensation items for the Plaintiff’s loss incurred from the land and obstacles and did not claim the compensation amount for farming loss. The instant adjudication of expropriation did not recognize the compensation amount for farming loss against the Plaintiff.

On December 11, 2013, the Plaintiff submitted to the Central Land Expropriation Committee a written objection (No. 5) regarding the instant adjudication on expropriation. The Plaintiff stated “a summary of the objection” in the “a summary of the objection” as “a summary of land appraisal amount, farming compensation, and prop pipe,” and stated “reasons for objection” in the “reason for objection” column as “an amount of compensation that has not been reflected in the current dutiable value or has not been omitted.”

As to the Plaintiff’s assertion on the compensation for farming loss, it is reasonable to determine that it is reasonable to calculate the amount calculated by multiplying the amount calculated by multiplying the annual average of farm household per unit cultivated area by the statistics service agency under Article 3 of the Statistics Act pursuant to Article 48(1) of the former Enforcement Rule of the Land Compensation Act, which the Defendant investigates and announces every year, by the Plaintiff’s compensation for farming loss, as the Plaintiff’s compensation amount for farming loss is reasonable, but did not decide to pay the Plaintiff the compensation amount for farming loss as in the instant expropriation ruling.

2) Determination

(A) In full view of the following facts, the Plaintiff, before filing the instant lawsuit, shall be deemed to have undergone the adjudication procedure under Article 85(1) of the Land Compensation Act with respect to the amount of farming loss compensation.

A) A project operator shall compensate the landowner or person concerned for any losses incurred by the acquisition or use of the land, etc. required for the public works (Article 61 of the Land Compensation Act). A project operator is obligated to compensate for any losses incurred in farming to the landowner (Article 77(2) of the Land Compensation Act). A project operator shall compensate for any losses incurred in farming to the landowner or person concerned by land owner or individual (Article 64 of the Land Compensation Act). A landowner or person concerned may file an administrative litigation within 60 days from the date of receiving a written adjudication, and within 30 days from the date of receiving a written adjudication on the objection if he/she has filed an objection (Article 85(1) of the Land Compensation Act). The purport that an administrative litigation against the compensation for losses ought to be conducted by the competent Land Tribunal prior to filing an administrative litigation against the competent adjudication on the compensation for losses is to thoroughly protect the rights of citizens through the reexamination of the adjudication agency.

① If a project operator fails to reach an agreement on compensation for losses, the project operator may file an application for adjudication with the land expropriation committee (Article 28(1) of the Land Compensation Act), while the landowner may file an application for adjudication with the project operator where the agreement on compensation for losses has not been reached (Article 30(1) of the Land Compensation Act), and cannot file an application for adjudication with the land expropriation committee directly (Article 30(1) of the Land Compensation Act). ② If the project operator has already filed an application for adjudication, the landowner cannot file an application for adjudication with the project operator, and ③ the project operator may file an application for adjudication against the project operator regardless of the landowner’s intent at the time of the application for adjudication; ③ even if the project operator files an application for adjudication without omitting part of the compensation for losses, it is reasonable to view that the landowner had filed an application for adjudication on expropriation with the land owner, and if the landowner did not set the compensation for farming losses at all in the adjudication on expropriation, the landowner claimed the payment of the compensation for farming losses at the time of raising such objection.

B) According to the above facts, the following facts are recognized.

① The Plaintiff demanded the Defendant to calculate and pay the amount of farming compensation based on the actual income under Article 48(2) of the former Enforcement Rule of the Land Compensation Act. However, the Defendant rejected that the amount should be calculated based on the statistical income under Article 48(1) of the above Enforcement Rule, which led to no agreement between the Plaintiff and the Defendant on the amount of farming compensation.

② The instant adjudication on expropriation did not determine the compensation for losses for land and obstacles and did not determine the compensation for farming losses. Upon raising an objection, the Plaintiff asserted that the Defendant is liable to pay the Plaintiff the compensation for farming losses calculated by the actual income under Article 48(2) of the Enforcement Rule of the former Land Compensation Act. The instant adjudication on expropriation was dismissed on the ground that the Plaintiff cannot calculate the compensation for farming losses by the method asserted by the Plaintiff, and that the method calculated by the Defendant is adequate.

(c) Amount of lawful farming loss compensation; and

As seen earlier, the Plaintiff’s legitimate farming loss compensation amount is KRW 55,309,450 calculated by the Defendant pursuant to Article 48(1) of the Enforcement Rule of the former Land Compensation Act. As such, the Defendant is liable to pay the Plaintiff the above KRW 55,309,450 and the delay damages therefor.

D. Sub-committee

Therefore, with respect to the Plaintiff KRW 9,307,090 (i.e., the court appraisal amount of KRW 421,582,850 - the expropriation adjudication amount of KRW 412,275,760), 11,405,000 (i.e., 190,50,000 court appraisal amount of KRW 179,095,000), farming indemnity amount of KRW 5,309,450, totaling KRW 76,021,540, and KRW 20,712,090 (i.e., the amount of land indemnity amount of KRW 9,307,090) - damages compensation amount of KRW 41,40,50,000 (i.e., the amount of damages for delay from the date of the first instance judgment to the date of 25,205,000,000).

6. Conclusion

The plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal shall be accepted, and the above part shall be revoked, and the defendant shall be ordered to pay the additional amount for the defendant. The remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] List of Compensation: omitted

[Attachment 2] Related Acts and subordinate statutes: omitted

Judges Jin Sung-sung (Presiding Judge)