Plaintiff (Law Firm Yun, Attorneys Ansan Jae-sik et al., Counsel for plaintiff-appellant)

Korea Water Resources Corporation (Law Firm LLC, Attorneys Cho Jae-soo et al., Counsel for the defendant-appellant)

December 19, 2018

Busan District Court Decision 2016Guhap24695 Decided December 21, 2017

1. Of the judgment of the first instance, the part of the judgment against the defendant ordering the plaintiff to pay the defendant in excess of the following amount shall be revoked, and the plaintiff's claim corresponding to the revoked part shall

The defendant shall pay to the plaintiff 103,806,949 won with 5% interest per annum from November 23, 2016 to January 9, 2019, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's appeal and the defendant's remaining appeal are all dismissed.

3. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 709,449,517 won, and from November 23, 2016 to November 22, 2017, 5% per annum for the purpose of the claim and the date of delivery of a copy of the application for modification of the cause of the claim as of November 22, 2017, and 15% per annum for the following day to the date of full payment.

2. Purport of appeal

A. The plaintiff

The portion of the judgment of the court of first instance against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 73,322,239 won with 5% interest per annum from November 23, 2016 to November 22, 2017, and 15% interest per annum from the next day to the date of full payment.

B. Defendant

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Basic facts

(a) Public notification of Busan (Omission of Project Name) development projects and the status of parties thereto;

Busan (Business Name omitted) Development Project (Business Name omitted) <16th>> Development Project was announced on December 14, 2012 (No. 2012-8888, the Ministry of Land, Transport and Maritime Affairs announced on December 14, 2012.

The Defendant is the project implementer of the instant project, and the Plaintiff has operated wholesale and retail business of special crops on the trade name of △△△△△△, located on the ground of Gangseo-gu Busan Metropolitan City ○○dong (number 3 omitted) located within the instant project zone.

(b) Adjudication on expropriation by the Central Land Tribunal on September 29, 2016;

1) Although the Defendant agreed on the compensation for the land and goods to be incorporated in the instant project, including the Plaintiff, but did not reach an agreement on the amount of compensation.

2) The Central Land Expropriation Committee rendered a ruling of expropriation with the following contents:

(1) Commencement date of expropriation: November 22, 2016

② Compensation for losses: The Plaintiff, who is engaged in the wholesale and retail business of special crops, owns 192 square meters in the warehouse site of Gangseo-gu, Busan Metropolitan City (number 1 omitted), 1,487 square meters in the (number 2 omitted), and 3,748 square meters in the (number 3 omitted). Of them, the Plaintiff, who is engaged in the wholesale and retail business of special crops, owns only 11,072,100 square meters in the business compensation for (number 1 omitted) among them.

(c) Adjudication on expropriation and related litigation by the Central Land Tribunal on November 16, 2012;

1) The Central Land Tribunal accepted each land (number 4 omitted) and each (number 5 omitted) (hereinafter “land, such as parcel number 4 omitted”) in Gangseo-gu, Busan. The Central Land Tribunal set compensation for losses at KRW 100,871,940 (i.e., business loss 13,650,000 + farming loss + KRW 87,221,940).

2) On January 2, 2013, the Plaintiff filed a lawsuit against the Korea Land and Housing Corporation seeking additional payment of KRW 86,176,740,00 against the Busan District Court 2013Guhap25 (hereinafter “the first instance court of the relevant case”). The grounds for the Plaintiff’s assertion that the amount of compensation for losses was reduced are as follows.

① The Plaintiff’s sales amount of KRW 1,455,173,051 in total and KRW 1,455,173,051 in 208 includes sales amount, such as net and seeds, processed as a business compensation instead of farming compensation, on the ground that farming was cultivated by using a line without using power. As such, if sales amount is excluded by 5.23%, which is the ratio of sales amount to sales amount of the part treated as a business compensation, then sales amount is 1,379,067,50 won in total (=1,455,173,051 x (1 - 0.0523).

② However, the total sales amount include the sales amount of the portion of 6,542.4 square meters [in the case of a non-party ownership, hereinafter “land, such as lot number 6 omitted) in the aggregate among the four parcels cultivated by the Plaintiff, which are not subject to expropriation other than 2,010 square meters of land (number 4 omitted), such as (number 4 omitted), subject to expropriation of the instant project, and the sales amount of 6,542.4 square meters [in the case of a non-party ownership, hereinafter “land, such as a lot number 6 omitted”)]. Thus, in calculating the annual income per unit area based on the total cultivation area, 43,134 won [in the case of calculating the annual income, 43,134 won [(number 1,379,067,500 ± 2 years] ± 8,552.4 square meters in

③ Therefore, the lawful compensation for farming of land, such as (number 4 omitted), is KRW 173,398,680 (i.e., KRW 43,134 x 2,010 square meters x 2 years). Therefore, the Korea Land and Housing Corporation is obligated to pay the Plaintiff KRW 86,176,740, which is the difference between the reasonable compensation for farming and the compensation for farming under the expropriation

3) On May 16, 2014, the first instance court rendered a judgment ordering the Korea Land and Housing Corporation to pay KRW 43,335,600 to the Plaintiff for the following reasons.

① The Plaintiff’s gross income from December 31, 2006 to December 30, 2008 is a total of 1,459,389,176 won.

(2) The Korea Land and Housing Corporation has dealt with the Plaintiff’s growing scams, scams, etc. as business compensation. Of the Plaintiff’s total sales, the sales ratio of the Plaintiff appears to have 5.23%. If the Plaintiff deducts the amount equivalent to the ratio of sales of anti-nets, scams, etc. from the Plaintiff’s sales, the amount of KRW 1,383,063,122 (==1,459,389,176 + (1-0523); hereinafter the same shall apply) is the Plaintiff’s sales amount.

③ The Plaintiff’s gross income of crops for two years from December 31, 2006 to December 30, 2008 shall be KRW 1,038,371,522.

④ Since the Plaintiff’s gross income of the Plaintiff’s agricultural products includes the income from selling vegetables cultivated on the land, such as (number 6 omitted), which is not subject to expropriation, in addition to (number 4 omitted) land (number 6 omitted), the total farmland area of 8,552.4 square meters (=2,010 square meters + 6,542.4 square meters). Thus, when calculating an annual income per unit area based on an annual amount of 32,477 won (=1,038,371,522 won ± 2 years) ± 8,52.4 square meters 】 income rate of 53.5 percent).

⑤ Since the lawful compensation for farming of land, such as (number 4 omitted), is KRW 130,57,540 (i.e., KRW 32,477 x 2,010 square meters x two years), the Korea Land and Housing Corporation is obligated to pay the Plaintiff the difference between the reasonable compensation for farming and the compensation determined by the adjudication of expropriation (i.e., KRW 130,557,540 - KRW 87,221,940).

4) The Korea Land and Housing Corporation appealed to Busan High Court Decision 2014Nu465, but the appeal was dismissed on November 12, 2014, and the said judgment (hereinafter “relevant case judgment”) became final and conclusive on December 3, 2014.

[Ground of recognition] The fact that there has been no dispute, significant fact in this court, Gap evidence 1 through 4, Eul evidence 1, 2, 4, and 8 (including each number, if any; hereinafter the same shall apply), the purport of the whole pleadings and arguments

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

The plaintiff asserts that the defendant is obligated to pay the compensation for farming loss to the plaintiff on the following grounds:

① The Plaintiff is obligated to install a plastic house on the ground of 658.4 square meters among the land (number 2 omitted) and 2,880 square meters, among the land (number 3 omitted), and cultivate a organic farm and meet the requirements for agricultural loss compensation, the Defendant did not pay KRW 720,821,617, in addition to the business loss compensation amount of KRW 11,072,100, the Defendant did not pay KRW 720,821,617, in addition to the business loss compensation amount of KRW 720,821,617. Therefore, the Defendant is obligated to pay the Plaintiff the business loss compensation amount of KRW 709,449,517, excluding the business loss compensation amount of KRW 11,617, and the delay damages therefrom.

② Even if the Plaintiff’s portion of 361.4 square meters of the land (number 2 omitted) in which the Plaintiff cultivated a net and new seeds (hereinafter “unclaimed land”) is not subject to farming loss compensation, the Defendant is obligated to pay 636,127,278 won, excluding KRW 11,072,100, 100, excluding the amount of business loss compensation already paid to the Plaintiff, and delay compensation therefor, given that the amount of farming loss compensation for the remainder of the instant land is KRW 647,19,378, which the Plaintiff is entitled to receive with respect to the remaining land.

③ Since the public announcement of the project approval of the instant project is December 14, 2012, Article 48 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, Infrastructure and Transport No. 5, Apr. 25, 2013; hereinafter “former Enforcement Rule”) and Article 5 (amended by Ordinance of the Ministry of Construction and Transportation, Jul. 5, 2013; hereinafter “former Income Standards”) shall apply.

④ Even if Article 48 of the 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. 5, Apr. 25, 2013; hereinafter “new Enforcement Rule”) and “the standard for actual income from agricultural crops (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 2013-401, Jul. 5, 2013; hereinafter “new income standard”), the income rate ought to be applied, 52.2%, the average income rate of “facility bonds” in the uppernam-do.

2) The defendant's assertion

The defendant asserts that the plaintiff's assertion is improper for the following reasons.

① The Plaintiff is a person who was engaged in wholesale and retail business with the trade name of △△△△△△, and the Plaintiff made an appraisal on the premise that the Plaintiff is eligible for business loss compensation even during the process of making a decision on expropriation. Therefore, the Plaintiff is not a person subject to

② Even if the Plaintiff falls under a person subject to compensation for farming loss, the amount of compensation for farming loss was calculated erroneously as follows:

According to the Addenda of the new Enforcement Rule and the new income standards (hereinafter “new Enforcement Rule, etc.”), in this case where a public announcement of a compensation plan was made after the enforcement of the new Enforcement Rule, etc., the amount of farming compensation shall be calculated in accordance with the new Enforcement Rule, etc.

(C) If the new income standard is applied, the income rate should apply 47.1%, which is the average income rate of the 'special-use medicine crops' even after the Gyeongnam-do.

The income of the plaintiff's assertion that causes a loss may be calculated unfairly because the amount of sales of land, such as (number 6 omitted) cultivated by the plaintiff is not owned by the plaintiff.

(2) When applying special provisions on the calculation of actual income (Article 6 of the new income standard), the amount of compensation for agricultural loss of the plaintiff shall be 27,604,050 won (two times the average income of the crops for special use of medicine in the 2012, 2012).

B. Determination

1) Determination as to whether the Plaintiff is subject to compensation for farming loss

A) Relevant statutes

(2) Where the owner of farmland is a farmer who resides in the relevant area, compensation may be made under the conditions as prescribed by the Ordinance of the Ministry of Land, Infrastructure and Transport:

B) In addition to the following circumstances, the facts acknowledged as above, Gap's evidence Nos. 5, 6, 13 (number 1, 37, serial number 1, 37), 15, 16, Eul evidence Nos. 2, 3, and 4, and the whole purport of the pleadings as a result of the fact inquiry as to the central appraisal corporation of this court, the central appraisal corporation of this court, the appraisal appraisal corporation, and the appraisal appraisal corporation, were incorporated into the middle-term public service project execution district in which the land in this case was actually used as agricultural crops, and thus, it is determined that the land in this case is subject to the compensation for farming loss as prescribed in Article 77 (2) of the

① The Plaintiff is deemed to have actually cultivated a organic farming and fishing village (a fish leaves, fluor, fluor, fluor, fluorium, fluorium, beta, brusium, betaviru, betab, brusium, etc.) on a total of 2,880 square meters of land (number 2 omitted) and 3,177 square meters of land, among the land incorporated into the instant project site district (number 3 omitted) (see the evidence No. 5, 6, the video of the evidence No. 3, and the report of the third pleading of the first instance trial).

② With respect to the land (number 1 omitted) around June 19, 2008, the Plaintiff was registered as a farmer in each farmland ledger with respect to the land (number 2 omitted) around November 26, 2008, and with respect to the land (number 10 omitted) around February 2, 2009. There are no data suggesting that the Plaintiff does not fall under a farmer prescribed in Article 3 of the Enforcement Decree of the Farmland Act, or that the instant land falls under farmland that is not subject to farming compensation as prescribed in Article 48(3) of the Enforcement Rule of the Land Compensation Act.

③ The Defendant is at issue at issue that the Plaintiff completed business registration with the trade name of △△△△△△, the business contents of which consisting of special crops wholesale and retail business. However, as long as the Plaintiff actually cultivated organic farming collection facilities, etc. as seen earlier, it cannot be deemed that the Plaintiff does not constitute a person entitled to compensation for farming loss

In addition, even though the plaintiff operated △△△△△△△ in the related case, the plaintiff partially won the decision, and the above decision became final and conclusive.

C) As seen earlier, the Defendant’s assertion that the Plaintiff constitutes a person subject to compensation for farming loss is merely a person subject to compensation for business loss cannot be accepted.

2) Determination as to whether the cultivated land, such as anti-nets, is included in the subject of compensation for farming losses

A) Relevant legal principles

In light of the nature of compensation for losses and compensation for farming, where the farming can continue to exist in the future because of the transfer of flowerss, such as flowers plants cultivated by planting them in a container, which is not by using force of farmland, to a neighboring substitute place similar to the natural environment, such as climate or traffic, etc., such as flowerss, and the social environment, such as social environment, etc., such as climate or traffic, etc., can be brought about without any particular obstacle to the growth, such special sacrifice cannot be deemed the subject of compensation for farming unless there are special circumstances such as loss of living base, unless there are special circumstances such as loss of living base, etc. (see Supreme Court Decision 2002Du8909 delivered on April 27, 2004, etc.).

B) Determination

(1) The fact that the Plaintiff cultivated the 361.4 square meters of land, which was not directly planted to the ground, on the ground, in a manner of planting a spaw and a spaws on the ground, is not in dispute between the parties, or in full view of the purport of the entire pleadings, each of the entries and images in the evidence Nos. 13 (round 2, No. 8), No. 3, No. 10, 11, and 12, and the purport of the entire pleadings.

In addition, in addition to the above legal principles, it is judged that the land cultivated in a tomb, which is not cultivated by using farmland's land power, is not subject to compensation for farming loss.

(2) On this point, the Plaintiff asserts to the effect that, once a spaws are cut once, the spaws cannot move out of the plastic house as a whole with the spawn, so it should be viewed differently from the spawn like the spawn.

However, even in the case of spawn and spawn cultivated on the seed board, it is not a cultivation by using spawn power of farmland, but a spawn cultivation by planting it in another container and continuing cultivation without causing any particular trouble to the growth of the spawn. Therefore, the Plaintiff’s above assertion cannot be accepted.

3) Determination on the statutes applicable to the calculation of the amount of farming loss compensation

A) Relevant statutes

(1) Relevant provisions of the Land Compensation Act

(1) When any project operator needs to acquire or use land, etc. through consultation prior to project approval under Article 20 to implement a public works project, he/she shall prepare a land and goods protocol and affix his/her signature or seal thereon, and have landowners and persons concerned sign or seal it. (1) When a project operator prepares a land and goods protocol pursuant to Article 14, he/she shall publicly announce an indemnity plan including the outline of the public works, the details of the land and goods protocol, the time, method and procedures for compensation, etc. in a daily newspaper circulated nationwide, and notify landowners and persons concerned thereof, respectively. (1) Any project operator who has obtained project approval under Article 20 shall undergo the procedures of public announcement, notification and perusal of the compensation plan, the computation of compensation amount, and the consultation with landowners and persons concerned. In such cases, Articles 14 through 16 and 68 shall apply mutatis mutandis.

(2) The relevant provisions of Article 48 of the Enforcement Rule of the Land Compensation Act are as follows.

(1) Notwithstanding the provisions of paragraph (1), an amount calculated by multiplying the actual income by the area of farmland (including multi-living plants) actually cultivated by a person who verifies income as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs through consultation with the Minister of Land, Transport and Maritime Affairs on April 25, 2013, shall be the amount of compensation for losses in farming. (2) Notwithstanding the provisions of paragraph (1), where an amount calculated by multiplying the area of land actually cultivated by the actual income per unit cultivation area by two years, shall be the amount of compensation for losses in farming. (2) Where the amount of farmland, which is cultivated by a person who verifies actual income as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport in the Official Gazette after consultation with the Minister of Agriculture, Food and Rural Affairs, exceeds the amount of compensation for actual farming income by the area of land actually cultivated in the unit cultivation area (including the amount calculated by multiplying the area of land actually cultivated in the unit by the amount of compensation for losses in the unit cultivation area, the amount of compensation for each of the following three years shall be separately determined and applied:

(3) The content of the Agricultural Product Actual Income Recognition Standard is as follows.

(2) The income rate under the provisions of Article 5 (Standards for Application of Income Rates) (1) shall be applied in the order of the following subparagraphs: Article 5 (Standards for Application of Income Rates) (1) The income rate under the provisions of Article 3 shall be applied to agricultural crops and livestock products income collection which are not included in the income rate by national crops under subparagraph 1; 2. The total income rate of agricultural products which are not included in the income rate by national crops under subparagraph 1. (2) The amount of income collection under the provisions of each subparagraph of paragraph (1) shall be classified into the amount of income collection published in the year in which the approval of the project plan is published.

B) the facts of recognition

The following facts are acknowledged as either the parties to a dispute or the whole purport of the arguments in Gap evidence Nos. 1, 9, 10, 17, and Eul evidence No. 5.

(1) Public announcement of project approval and public announcement of indemnity plan for the instant project

Evidence of the temporary contents of the table contained in the main sentence on December 14, 2012, and the public notice of the recognition of the instant project ( Note 1) No. 1, and April 25, 2013, the enforcement of the new Enforcement Rule on July 5, 2013, the enforcement date of the new Income Standard, No. 5, Sept. 13, 2013;

Note 1) Publication of Recognition

(2) Evidence No. 17 No. 17-1

In cases where an inquiry about the method of calculating the actual amount of farming loss is made on December 1, 2015, the point of time when the consultation about the method of calculating the amount of the appraisal included in the main sentence is made using statistics pursuant to Article 48(1) of the Enforcement Rule of the Land Compensation Act and the actual income is compensated pursuant to Article 48(2) of the same Rule, the standard of income (Provided, That the date of the public announcement of the compensation plan is December 8, 201 and the date of the public announcement of the compensation plan is August 1, 2015, it refers to the amount calculated by multiplying the actual amount of the farmland cultivated by the person who proves the actual income in consultation with the Minister of Agriculture, Food and Rural Affairs by the total amount of 10 years before the date of public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the approval of the public announcement.

C) Application of new enforcement rules and new income standards

(1) In light of the following circumstances and relevant legal principles revealed in full view of the purport of the entire argument in the facts acknowledged as seen earlier, since the public notice and notification of the compensation plan were made after the enforcement of the new Enforcement Rule, it is determined that the amount of farming compensation should be calculated by applying the new Enforcement Rule, etc.

(1) The Addenda of the new Enforcement Rule, etc. clearly states that “the provisions of Article 15(1) (including cases applied mutatis mutandis pursuant to Article 26(1)) of the Land Compensation Act shall apply to the public works that publicly announce the compensation plan and notify landowners and persons concerned of the compensation plan.” In addition, where the compensation plan has been publicly announced after the public announcement of the project approval, there is no special provision or transitional provision for applying the former Enforcement Rule

② The Plaintiff asserts that Article 48 of the new Enforcement Rule and Article 5 of the new Income Standard are only applicable to public works newly implemented after each implementation, and that if not, they violate the principle of prohibition of retroactive legislation.

However, retroactive legislation can be divided into a genuine level legislation that applies to facts or legal relationships that have already been terminated by new legislation and an in personam level legislation that applies to existing facts or legal relations. Among them, the genuine level legislation that deprives an individual of the legal status that has already been formed under the existing law through ex post facto legislation is not permitted in accordance with the principle of the rule of law that covers the protection of individuals' trust and legal stability. However, in principle, in the process of a bridge between the reasons for public interest and the reasons for personal protection that require the retroactive effect, which require the retroactive effect, in principle, the scope of the legislation is limited. Furthermore, the principle of indivate law means that the relevant law cannot be applied to the facts that have already been completed before the entry into force of the relevant law, and it does not restrict the application of the law to the requirements that have already occurred (see, e.g., Supreme Court Decisions 2001Du5705, Nov. 13, 201; 2005Du305, Oct. 15, 2007).

Before the enforcement of the new Enforcement Rule, insofar as it is difficult to view that the legal status of the previous Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Land Expropriation Act”) and the relevant statutes have been specifically determined on the compensation for farming loss to the Plaintiff, the application of the new Enforcement Rule, etc. cannot be deemed to deprive the Plaintiff of the legal status through ex post legislation.

Therefore, we cannot accept the plaintiff's above argument.

③ In addition, the Plaintiff asserts to the effect that the phrase “the provisions applicable mutatis mutandis under Article 26(1) of the Land Expropriation Act” in the Addenda of the new Enforcement Rule, etc. merely purports to determine whether to apply the new Enforcement Rule, etc. based on the public announcement and notification of the compensation plan after the public announcement and notification of the project approval in the case of public works for which the public announcement and notification of the compensation plan

However, such interpretation seems to be contrary to the language and text of each supplementary provision such as the new Enforcement Rule, and there is no reason to restrict the application, contrary to the plaintiff's assertion.

Therefore, the plaintiff's above assertion is without merit.

④ Supreme Court Decision 2010Du13890 Decided the Plaintiff’s assertion that the instant legal doctrine ought to be applied to the instant case, is a matter concerning the cost of moving a house, which is paid in the aspect of social security for the tenants to suffer special difficulties due to the policy purpose of encouraging early moving of tenants in the housing redevelopment improvement project and smooth implementation of the project by encouraging early moving of tenants, and that is, it is difficult to apply the instant case as it is.

Above all, in the redevelopment project of housing, the amount of compensation for relocation of housing is already determined on the public announcement date or the public announcement date of the project approval. In this case, the application of the new Enforcement Rule pursuant to Article 4 of the Addenda to the new Enforcement Rule is likely to correspond to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “Urban Improvement Act”). In addition, Article 40(1)3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “Urban Improvement Act”) provides for the supplementary application of the provisions related to the Land Compensation Act, and the procedure for public announcement and notification of the contents including housing measures for tenants

Therefore, we cannot accept the Plaintiff’s assertion that the above Supreme Court’s ruling should be applied as it is.

⑤ Based on the Ministry of Land, Infrastructure and Transport policy and inquiry reply (No. 17-1), Article 15 of the Land Expropriation Act provides for the public notice of a compensation plan in the course of acquiring land through consultation. As such, in cases of accepting land as in this case, the total income of agricultural crops shall be calculated on the basis of the date a public notice of project approval is given and the actual income and the amount of compensation for farming loss shall be calculated on the basis of the total income of agricultural crops so calculated. However, the above inquiry reply is only about the calculation of the total income of agricultural crops under Article 2 of the income standard, but it is not

6. In relation to the timing of announcement and notification of a compensation plan, there is room for unreasonable consequences that the new Enforcement Rule, etc. is applied to the time of announcement and notification of the compensation plan, due to the unforeseen circumstances that there is no particular restriction on the statutes related to the time of announcement and notification of the compensation plan.

However, this circumstance alone is not enough to exclude the application of the new enforcement rules, etc. and to apply the former enforcement rules, etc. in the absence of other legal grounds.

(2) As such, in this case, the amount of compensation for farming loss shall be calculated by applying the new Enforcement Rule, etc.

4) Determination as to the calculation of compensation for farming loss

A) Determination on the Plaintiff’s income

(1) Relevant legal principles

In principle, compensation for losses incurred due to expropriation, etc. by public necessity shall be a legitimate compensation, and the just compensation for agricultural losses shall be based on actual income that reflects unique circumstances, such as characteristics of the farmland to be expropriated and farming circumstances. Therefore, the standard for recognition of actual income from agricultural crops (No. 2003-44, Feb. 25, 2003) for the provision of documents, etc. certifying transaction performance as supporting materials for the total income from agricultural crops is merely an example of objectivity and rationality, and if there is objectivity and rationality even in the method of proof other than the documents enumerated above, the total income from agricultural crops can be recognized (see Supreme Court Decision 2011Du26794, Jun. 14, 2012).

(2) Determination

(A) The Plaintiff’s annual income per unit cultivation area

(1) Calculation method

The actual income shall be calculated by the gross income of agricultural crops ¡À the total farmland area cultivated ± income rate (Article 3 of the new income standard); the gross income of agricultural crops means the annual average total income for two years prior to the date a public announcement of a compensation plan is made under the main sentence of Article 15 (1) of the Land Expropriation Act or a public announcement of project approval is made under the provisions of Article 22 of the Act (Article 2

In this case, since the public announcement of project approval was made prior to the public announcement of the compensation plan, the average annual income for two years prior to the public announcement of project approval shall be based

(2) The plaintiff's income

Comprehensively taking account of the respective descriptions and arguments in Gap evidence Nos. 7, 8, 11, 12, and 14, it is recognized that the Plaintiff’s organic farming income amount for two years from December 14, 2010 to December 13, 2012, which is the day before the date of the public announcement of the instant public announcement of the business, was KRW 1,383,537,405 (i.e., sales revenue amounting to KRW 1,854,617,529 (i.e., sales revenue amounting to KRW 471,080,124).

③ Determination as to whether the Plaintiff’s assertion income is inappropriate

The defendant asserts that the income of the plaintiff was calculated unfairly since the sales amount of the part of the land, such as ○○dong (number 6 omitted) cultivated by the plaintiff was included.

In full view of the facts stated in Gap evidence Nos. 18 through 20, and the whole purport of the pleadings as a result of the return of tax information to the director of the tax office North Busan District Tax Office by this court, it is recognized that the non-party applied for the compensation for farming loss against the defendant with respect to the land including

The Defendant’s assertion and submitted evidence alone are insufficient to recognize that the sales of land, such as (number 6 omitted) was included in the income from December 14, 2010 to December 13, 2012 of the Plaintiff’s assertion, and there is no data to support the same.

Therefore, the defendant's assertion that the sales amount of land, such as the plaintiff's claim (number 6 omitted) is included in the income cannot be accepted.

(B) Determination on the income rate

The defendant asserts that according to new income standards, 47.1% of the average income rate of "specific medicinal crops" should be applied to ordinary south-do.

을 제7호증의 기재에 의하면, 시설채소에는 시설들깻잎, 시설양상추 등이 포함되어 있고 평균 소득률은 52.2%인 사실, 특용약용작물에는 참깨, 녹차, 오미자, 느타리버섯, 새송이버섯, 양잠(약용)이 포함되어 있고 평균 소득률은 47.1%인 사실이 인정된다.

The defendant's above assertion is without merit, since the plaintiff's crops cultivated on the land of this case are judged to be a facility, rather than a special medicinal crop.

Therefore, the income rate to be applied to the calculation of agricultural loss compensation is 52.2%.

(C) Calculation of compensation for farming loss;

(1) Calculation method

The amount of compensation for agricultural loss shall be calculated by multiplying the actual income per unit area by two years, but where the actual income per unit cultivated area exceeds twice the average income by item of the production of data on income of agricultural and livestock products that is surveyed and announced annually by a statistics service agency under subparagraph 3 of Article 3 of the Statistics Act, the amount calculated by multiplying the average production per unit cultivated area by the relevant item by two years shall be deemed the actual income per unit cultivated area, and the amount calculated by multiplying the amount of production by two years, and where the amount of production cannot be verified, it shall be double the average income (Article 48 (2) 1 of the new Enforcement Rule and Article 6 (1) of the new income standard).

(2) Actual income per annual unit cultivated area.

The actual income per annual cultivated area of the Plaintiff calculated on the basis of the Plaintiff’s income date as seen earlier (i.e., KRW 1,383,537,405 ± 2 years ± 3,538.4 ± income rate 0.52).

On the other hand, 102,052 won calculated as above exceeds twice the average income (9,039.9/m2) for each kind of crop (facility bonds) in 2012, the amount of 102,052 shall be calculated on the basis of 18,079.8 won (9,039.9 x 2) per square meter, which is two times the average income amount of the facility bonds in Gyeongnam-do, 2012, and there is no other data to verify the Plaintiff’s production amount.

(3) Calculation of compensation for farming loss;

Ultimately, the amount of farming compensation that the Defendant shall pay to the Plaintiff is KRW 114,879,049 (=18,079.8 won x week 5) x 3,177 square meters x two years).

D. Sub-committee

Therefore, the Defendant is obligated to pay damages for delay calculated at each rate of 103,806,949 won, excluding KRW 11,072,100,000, and 103,806,949, which is the day following the date of expropriation, which is the day following the date of expropriation of the Plaintiff and 5% per annum under the Civil Act until January 9, 2019, where it is deemed reasonable to dispute over the existence and scope of the Defendant’s obligation to pay damages for delay calculated at each rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as without merit. Since part of the judgment of the court of first instance differs from this, the part of the judgment of the court of first instance which accepted the defendant's appeal and ruled against the defendant who ordered payment in excess of the above recognition amount is revoked, and the plaintiff's remaining appeal and the plaintiff's appeal are dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Jong-hun (Presiding Judge)

(1) Where a project developer deems it necessary for a waterfront development project, he/she may expropriate or use land, etc..

2) The compensation for housing relocation expenses for the tenants of residential buildings under the Urban Improvement Act shall be limited to those who have resided in the relevant improvement zone for not less than three months at the time of the public announcement of the public announcement of the improvement plan, when it becomes known that the residents, etc. are scheduled to implement the improvement project by publicly announcing the improvement plan (see Supreme Court Decision 2009Du16824, Sept. 9, 2010).

3) Except as otherwise provided for in this Act, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall apply mutatis mutandis to the expropriation or use of the ownership of or other rights to implement a rearrangement project in an improvement zone: Provided, That the standards and procedures for the compensation for losses incurred by the implementation of an improvement project may be separately prescribed by Presidential Decree.

(4) The Defendant does not include the land area, such as the land number 6 omitted, and calculated the Plaintiff’s actual income on the basis of only 3,538.4 square meters of the area of the instant land (see, e.g., Supreme Court Decision 201Da11199, Dec. 19, 2018).

5) The area excluding the area of 361.4 square meters (e., the area of cultivated land) from the area of 3,538.4 square meters of the instant land