Whether a landowner may immediately file a claim against a project operator for compensation for losses due to a decrease in the prices of remaining land or remaining buildings under Articles 73 and 75-2 of the former Act without going through adjudication procedures prescribed in Articles 34 and 50 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative in principle), and whether the same applies to cases where the remaining land or remaining building is subject to adjudication procedures (affirmative)

In full view of the provisions and legislative purport of Articles 73, 75-2, and 34, 50, 61, and 83 through 85 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “Public Works Act”), in order for a landowner to receive compensation for losses due to the reduction of the price of the remaining land or remaining buildings under Articles 73, 75-2 of the Public Works Act from a project implementer, the landowner may receive compensation for losses pursuant to Articles 34, 50 of the Public Works Act only after going through the adjudication procedure stipulated in Articles 34, 83 through 85 of the said Act, and barring any special circumstance, it is not permitted to immediately claim compensation for losses against the project implementer without going through such adjudication procedure, and it shall not be viewed as a case where the remaining building or remaining building is to be expropriated by going through the adjudication procedure.

Articles 34, 50, 73, 75-2, 61, 83, 84, and 85 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201);

Supreme Court Decision 2011Du22587 Decided November 29, 2012 (Supreme Court Decision 2012Du6773 Decided April 24, 2014)

Plaintiff (Attorney Cho Jae-chul et al., Counsel for plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm LLC, Attorneys Yellow-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu21234 decided September 21, 2012

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court for compensation for losses due to the price decrease of remaining land and remaining buildings. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 73(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “Public Works Act”) provides that “If the price of the remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same landowner, or if it is necessary to construct a passage, ditch, fence, etc. or to construct other construction works on the remaining land, the project operator may compensate for such losses or the cost of the construction under the conditions as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs: Provided, That if the sum of the reduced price of the remaining land and the cost of construction on the remaining land exceeds the price of the remaining land, the project operator may purchase such remaining land, and Article 75-2(1) provides that “if the price of the remaining building is reduced or any other losses are incurred due to the acquisition or use of a group of the same building owner, the project operator shall compensate for such losses as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

According to the facts and evidence duly admitted by the court below, the plaintiff filed a claim for expropriation of the remaining land of this case and the remaining buildings of this case, and did not separately claim for compensation for damages due to price decrease. Therefore, in each expropriation ruling of this case and its objection, it can be known that the request for expropriation was dismissed, but no judgment was made on the compensation for damages due to price decrease in the remaining land of this case and the remaining buildings of this case. Thus, the claim for compensation for damages due to price decrease in the remaining land of this case and the remaining buildings of this case shall not be permitted in light of the above legal principles.

Nevertheless, the court below rejected the defendant's assertion that the compensation claim for damages due to the price decrease in the remaining land and remaining buildings in the adjudication procedure is unlawful without going through the adjudication procedure, on the ground that it is reasonable to view that the compensation claim for damages due to the price decrease in the remaining land and remaining buildings was made even if there was a claim for expropriation of the remaining land and remaining buildings in the adjudication procedure. In this regard, the court below erred by misapprehending the legal principles as to the procedure for compensation for damages due to the price decrease in the remaining land and remaining buildings,

2. Regarding ground of appeal No. 2

In order to evaluate the amount of compensation within 1/3 of the appraised value of neighboring land as a site for "private road" under Article 26 (1) 2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, it should have the substance corresponding to the private road under the Private Road Act by providing it for general traffic connected to the general road under the Road Act, etc. Furthermore, it should fall under any of Article 26 (2) 1 through 4 of the above Rule. In addition, in order for a landowner to fall under "road installed on his own for the convenience of his own land" under Article 26 (2) 1 of the above Rule, it should be acknowledged that there exist objective grounds to deem that the overall compensation does not go against the principle of fair compensation even if the landowner evaluated the value of the portion provided as a site due to the increase in the value of the part of his own land due to the increase in the convenience of the other part due to the increase in the convenience of the land, etc.

In full view of the evidence adopted, the lower court determined that the instant land and the instant remaining land were 1,975 square meters in Si-Gun (1 omitted) and the instant land were adjoining to 39 lines of the national highways, which were located within 5 square meters in Si-Gun, which were originally owned by the Plaintiff, and that the instant land and the instant land were 30 square meters in 44 square meters in Gun (30 square meters in 4 square meters in Gun), and that the instant land were 5 square meters in 4 square meters in Gun and 95 square meters in 4 square meters in Gun, and that the instant land were 5 square meters in 4 square meters in Gun and 95 square meters in 4 square meters in Gun, and that the instant land was 60 square meters in 4 square meters in Gun and 95 square meters in Gun and 955 square meters in Gun (200 square meters in Gun square meters in 204 square meters in 204 square meters in 194 square meters in Gun.

In light of the above legal principles and records, the above judgment of the court below is just and there is no violation of law by misunderstanding the legal principles as to private roads, contrary to what is alleged in the grounds of appeal. Furthermore, the ground of appeal that the plaintiff, in order to obtain a building permit for the remaining buildings of this case, divided the category of forest land into “road” and opened an access road to connect with the existing road by converting the category of land into “road”, and otherwise, the judgment of the court below is unlawful. Thus, the ground of appeal that the court below erred by misapprehending the legal principles as to private roads cannot be seen as a legitimate ground of appeal.

3. Regarding ground of appeal No. 3

In a lawsuit concerning the increase or decrease of land expropriation compensation, in case where each appraisal and each appraisal and each court appraiser, which form the basis of the judgment, have no illegality in the method of appraisal, and there is no other's opinion in view of the price factors other than the category of goods and services, but there is a difference in the result of appraisal due to a somewhat different relation with the category of goods and services, as long as there is no evidence to prove that there is an error in the content of each appraisal, reliance on any one of each appraisal belongs to the discretion of the fact-finding court (see Supreme Court Decision 2007Du25237, Oct. 9, 2008, etc.).

The decision of the court below is just in rejecting the appraisal result and the appraisal result of the first instance court appraiser and adopting the appraisal result of the court of first instance appraiser. There is no error of law by misunderstanding the legal principles as to the adoption of appraisal result, contrary to

4. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)