[1] Where a project operator refuses compensation for losses, whether the landowner and the person concerned can immediately seek compensation for losses against the project operator without going through the adjudication procedure (negative)

[2] The case holding that since a grave is an object fixed to the land and falls under "land, etc." as provided by Articles 2 subparagraph 1 and 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and a terminal loss, who is aware of the authorized administrator, falls under "related person" as provided by Article 2 subparagraph 5 of the same Act, it is necessary to go through the adjudication procedure under the same Act in order to seek compensation against the project implementer due to the transfer of a grave located on the ground when the forest and land in which the grave belongs, is included in the project area

[1] The reason why the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor grants a landowner a claim for adjudication to the land owner, etc. is that the project operator may file an application for adjudication at any time within one year from the date of public announcement of project approval, while the landowner, etc. has no right to file an application for adjudication, so that the landowner, etc. does not have a right to file an application for adjudication, and at the same time protect the interests of the landowner, etc., who are in a prompt confirmation of legal relations surrounding expropriation, and ensure fairness between the expropriated parties. In addition, the above Act indirectly imposes an application for adjudication on the project operator with an additional system under Article 30(3) in order to secure the effectiveness of the above claim, the landowner, etc. can file an administrative lawsuit following the adjudication procedure, and it is reasonable to deem that the landowner

[2] The case holding that since a grave is an object fixed to the land and constitutes "land, etc." under Article 2 subparagraph 1 and Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, it constitutes "related person" under Article 2 subparagraph 5 of the same Act, since a son who is an authorized administrator of the said grave refers to a person who holds ownership and other rights to the property located on the land, such grave's son's son's son's son's son's son's son's son's son's son's son's son's son's son, etc

[1] Articles 2 subparag. 4 and 5, 28, and 30 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Articles 2 subparag. 1 and 5, and 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2006Du19495 Decided July 10, 2008

Plaintiff (Law Firm Han, Attorney Song-hee et al., Counsel for plaintiff-appellant)

Ulsan Metropolitan City (Law Firm International Law, Attorney Kim Financial Resources, Counsel for defendant-appellant)

Defendant Intervenor 1 and 1 other (in English and English as Attorney Jeon-soo, Counsel for the defendant-appellant)

Ulsan District Court Decision 2008Guhap2303 decided Dec. 17, 2008

July 24, 2009

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 5.3 million won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1, 5, 6, and Eul evidence 1 through 3, 5:

A. The Intervenor’s Intervenor’s Intervenor (hereinafter “ Intervenor’s Intervenor”) (hereinafter “ Intervenor’s Intervenor’s Intervenor”) was a clan consisting of descendants of the 16th class Kim Jong-man’s Dasan’s 16th class Kim, Kim Jong-sung’s Gong, Kim, and the Plaintiff was a member of the clan.

B. The Defendant: (a) admitted a forest land of 16,721 square meters (number omitted) in Ulsan-dong, Ulsan-dong (hereinafter “the instant forest”); (b) notified Nonparty 1 (hereinafter “the instant grave”) inside and outside of the ground, who was the implementer of the project to create a rixr general industrial complex; and (c) opened the instant grave at the expense of KRW 1050,000,000,000,000 to Nonparty 2, who was the Plaintiff’s third village, as his subsequent hand; and (d) opened the instant grave at around November 24, 2007.

C. The Defendant intended to pay Nonparty 2 compensation of KRW 6,350,000 (hereinafter “the instant compensation”) for the relocation and relocation of the instant grave, but the Intervenor, on November 21, 2007, raised an objection to the Defendant on November 21, 2007, that the Intervenor’s right to safeguard and manage the instant grave belongs to the Intervenor’s subordinate association. Around that time, the Defendant paid the instant compensation to the Intervenor 1, a person who was the last parent of Nonparty 1’s lineal descendants, and thereafter, received a written statement of intent to pay KRW 1,50,000 equivalent to the relocation cost of the instant grave to Nonparty 2 and receive remains in consultation with Nonparty 2.

2. Whether the lawsuit of this case is lawful

ex officio, we examine the legitimacy of the instant lawsuit.

A. The plaintiff's assertion

Since the right to care and management of the instant grave is a subordinate grandchild, the instant compensation, which is the compensation for reburial and relocation, shall naturally belong to the Plaintiff. Therefore, the Defendant is obligated to pay the Plaintiff KRW 5,300,000,000,000, which is the remainder of the compensation paid to Nonparty 2, out of the instant compensation, to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) According to Articles 26, 28, 30, and 83 through 85 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”), in order for a project operator to receive compensation for the expropriation or use of land, etc. under Articles 2 subparags. 4 and 5 (hereinafter “land owner, etc.”) from the project operator, the procedures for consultations shall be followed. If an agreement is not reached or a consultation is impossible, the project operator shall request the competent Land Tribunal to make a ruling, and if the project operator fails to do so, the landowner, etc. may file a request for a ruling with the project operator. If an objection is raised against the ruling of expropriation, the project operator may file an administrative lawsuit or file an objection with the Central Land Tribunal within 60 days from the date of receipt of the written ruling, and if an objection is raised against the said ruling, the said adjudication may be filed within 30 days from the date of receipt of the written ruling.

However, the Public Works Act grants a landowner, etc. the right to file an application for adjudication as above, while a project operator may file an application for adjudication at any time within one year from the date of the public announcement of project approval, the landowner, etc. did not have the right to file an application for adjudication, which is interpreted to protect the interests of landowners, etc. who have prompt confirmation of legal relations surrounding the expropriation and to ensure fairness between the parties to the expropriation. In addition, the Public Works Act indirectly imposes an application for adjudication on the project operator with the additional dues system under Article 30(3) in order to secure the effectiveness of the above claim. In addition, in addition, if the project operator refuses the compensation for loss, the landowner, etc. can file an administrative lawsuit after going through the adjudication procedure, and it is reasonable to deem that it is not allowed to immediately seek the payment of compensation for losses against the project operator without going through such adjudication procedure (see Supreme Court Decision 2006Du19495, Jul. 10, 2008).

(2) As to the instant case, the instant grave is an object fixed to the land and constitutes “land, etc.” as prescribed by Articles 2 subparag. 1 and 3 of the Public Works Act. The Plaintiff’s awareness of the competent authority to safeguard and manage the instant grave refers to a person having ownership and other rights to the goods located on the land, and falls under “related persons” as prescribed by Article 2 subparag. 5 of the said Act, and thus, the instant grave falls under the category of “related persons” as prescribed by Article 2 subparag. 5 of the said Act. As such, the instant grave’s relocation on the ground is incorporated into the business area, and thus, should undergo adjudication under the said Act

However, there is no evidence to deem that the Plaintiff had undergone the aforementioned adjudication procedure prior to filing the instant lawsuit seeking the payment of compensation against the Defendant, and thus, the instant lawsuit ought to be deemed unlawful.

3. Conclusion

Thus, the lawsuit of this case is unlawful and dismissed. However, since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance is revoked and the lawsuit of this case is dismissed, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Yoon Jin-man (Presiding Judge) Kim Jong-hee