[1] The validity of land annexation in violation of Article 26 (3) of the former Cadastral Act, which prevents a person other than a project implementer from filing an application for land alteration until the project is completed with respect to the land, the commencement of which or alteration of which was reported (=effective)

[2] Whether Article 24 of the Enforcement Rule of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects for which evaluation method of land changing the form and quality of illegal land can be applied mutatis mutandis to the calculation of compensation for losses for the combined land in violation of Article 26(3) of the former Cadastral Act

[1] The legislative purport of Article 26(3) of the former Cadastral Act (repealed by Article 2 of the Addenda to the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009; hereinafter the same) is to stipulate that a landowner may apply for the annexation of lands and other land alteration based on the right to dispose of ownership of the land unless there are any special reasons. However, in the case of an urban development project, etc. where large scale land alteration occurs, the owner of land is entitled to apply for land alteration in a lump sum after the completion of the project so that the owner of the land can apply for land alteration in order to ensure the smooth progress of the project. Therefore, the combination of land in violation of the above legal provisions cannot be deemed to be anti-social in its nature. In addition, the former Cadastral Act does not have any provision as to the validity of the land annexation made in violation of the above legal provisions, and there is no criminal or administrative punishment as to the violator, unless there is any special reason to the contrary.

[2] As a matter of principle, land annexation does not involve a change in the physical form and form of the land, it does not require permission or reporting from the competent administrative agency, and it does not include sanctions against the application for annexation in violation of Article 26(3) of the former Cadastral Act, and its nature differs from the change in the form and quality of the land. Thus, the provisions of Article 24 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012) (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 9774, Jun. 9, 2009; Article 2 of the Addenda to the Land Survey, Waterway Survey and Cadastral Records Act) cannot be applied mutatis mutandis to the calculation of the amount of compensation for the land merged in violation of Article 26(3) of

[1] Article 26(3) of the former Cadastral Act (repealed by Article 2 of the Addenda to the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009) (see Article 86(4) of the current Act on Land Survey, Waterway Survey and Cadastral Records) / [2] Article 26(3) of the former Cadastral Act (repealed by Article 2 of Addenda to the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009) (see Article 86(4) of the current Act on Land Survey, Waterway Survey and Cadastral Records), Article 24 of the former Enforcement Rule of the Act on Land, etc. for Public Works and the Compensation Therefor (Amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan.

Plaintiff (Attorney Kim Si-soo, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Apex, Attorneys Park Gi-ero et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu33982 decided August 19, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the second ground for appeal

Article 27 of the former Cadastral Act (repealed by Article 2 of the Addenda to the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009; hereinafter the same) provides that “A project operator under the provisions of Article 26(1) shall report to the competent authority the commencement, alteration, or completion of the project under the conditions as prescribed by the Presidential Decree,” and Article 26(3) provides that “No person other than the project operator may file an application for land alteration until the project is completed with respect to the land for which the commencement or alteration of the project under the provisions of Article 27 is reported.”

The legislative intent of Article 26(3) of the former Cadastral Act is to limit the subject of land alteration application to the project implementer for smooth progress of the project by allowing the project implementer to apply for land alteration in a lump sum after completion of the project in case of an urban development project where large scale land alteration occurs, etc., based on the right to dispose of the ownership of the land, unless there is any special reason. In addition, the former Cadastral Act does not have any provision on the validity of land annexation made in violation of the above legal provision, and there is no provision on criminal or administrative sanctions against the offender. Considering the above circumstances, it is reasonable to deem that the above legal provision does not have any effect to invalidate a merger, and even if it is contrary to the above, it does not affect the validity of the merger.

The purport of the appeal is a mandatory provision under Article 26(3) of the former Cadastral Act, and the annexation of the land in violation thereof is null and void, so the amount of compensation for losses on the land in this case should be assessed on the basis of the status before the annexation, but it is not acceptable on the premise different from the aforementioned legal principles.

2. Regarding ground of appeal No. 1

As a matter of principle, land annexation does not involve a change in the physical form and form of the land, it does not require permission or reporting from the competent administrative agency, and it does not provide sanctions against the application for annexation in violation of Article 26(3) of the former Cadastral Act. Thus, it is different from the form and quality alteration of the land. Thus, the provision of Article 24 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 427, Jan. 2, 2012) that determines the method of appraisal on the land illegal change of form and quality cannot be applied by analogy to the calculation of the compensation amount for the land combined in violation of Article 26(3)

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the scope of application under Article 24 of the Enforcement Rule.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)