(영문) 춘천지방법원 2016.2.5. 선고 2015구합4806 판결

A. On March 9, 2010, the Gangwon-do Governor of Gangwon-do approved and publicly announced a C general industrial complex plan with the following contents pursuant to Article 15 of the Act on Special Cases Concerning the Simplification of Authorization and Permission Procedures for Industrial Complexes B (hereinafter referred to as the "C general industrial complex Fire-Fighting Act") (hereinafter referred to as the "public works of this case"):

A person shall be appointed.

B. On September 1, 2011, the Plaintiff has a fishery right (hereinafter referred to as “the fishery right of this case”) under the terms “license E”, “large-type fishing of fishing business”, “large-scale fishing of fishing business”, “fishing business improvement-type net”, “D branch line at the location of fishing ground”, “license period from September 18, 2001 to September 17, 201, and was entrusted pursuant to Article 81 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter referred to as “Land Compensation Act”) to other persons, including the Plaintiff and F, pursuant to Articles 68 and 16 of the Act on Compensation for Land, etc. for Fishing Rights, including the Plaintiff’s and the Plaintiff’s fishery right of this case, and the total amount of compensation for losses arising from the public work of this case including the Plaintiff’s fishery right of this case, the total amount of compensation for losses of fishery rights and obstacles arising from the public work of this case (hereinafter referred to as “land Compensation Act”).

Among them, the value of fishery loss was determined as KRW 1,539,769,500, and the compensation for the loss was requested to consult. On October 17, 201, the request was made again.

C. On February 14, 2012, the Plaintiff filed a claim for adjudication under Article 30(1) of the Land Compensation Act with the Korea Gas Corporation on April 12, 2012, for adjudication on the instant fishery right, the Plaintiff’s fishery right, the Plaintiff’s vessel owned by the Plaintiff, and other facilities (hereinafter “the instant fishery right, etc.”) upon the Plaintiff’s request for adjudication on April 12, 2012. However, around that time, the Defendant requested the Korea Gas Corporation to implement the procedure by making a public announcement of alteration because it did not make a public announcement under Article 22 of the Industrial Sites and Development Act on the instant fishery right, because the Plaintiff did not have the right of expropriation. The Gangwon-do Governor, on April 25, 2012, requested the Korea Gas Corporation to implement the procedure by making public announcement of alteration because it did not have the right of expropriation on the instant fishery right, etc.

D. On April 27, 2012, Sam-si requested the Plaintiff to compensate for consultation, but the Korea Gas Corporation again filed an application for expropriation ruling on the fishery right, etc. of this case with the Plaintiff on May 15, 2012. On June 13, 2012, the Defendant notified the Korea Gas Corporation of the return of the said application for adjudication to the Plaintiff on the ground that, on June 28, 2012, 83 cases subject to consultation on compensation for fishery rights, 80 or more cases, which were subject to consultation, were faithfully consulted and subsequently additionally acquired pursuant to Article 16 of the Land Compensation Act, and the owner who is not a fishery right is not entitled to file a claim for adjudication under Article 30 of the Land Compensation Act, and the Korea Gas Corporation cannot file a request for adjudication on land and obstacles, etc. for which consultation has not been made. Accordingly, the Korea Gas Corporation notified the Plaintiff of the return of the said application for adjudication on June 28, 2012.

E. On April 3, 2013, the Plaintiff filed an application for adjudication against the instant fishing right, etc. with the Korea Gas Corporation, and the Korea Gas Corporation did not comply with it on the grounds that the Plaintiff was not the claimant for adjudication.

F. As to this, the Plaintiff filed a lawsuit against the Korea Gas Corporation under the jurisdiction of Gangnam District Court Branch Branch Office 2013Guhap391, claiming that the Plaintiff did not take any measures such as filing an application for adjudication against the Korea Gas Corporation as of February 14, 2012 and April 3, 2013, and filed a lawsuit seeking confirmation of illegality of omission against the Korea Gas Corporation under the jurisdiction of Gangnam District Court Branch Branch Office 2013Guhap391, and rendered a judgment on December 10, 2013 that “the failure of the Korea Gas Corporation to file an application for adjudication against the competent Land Tribunal on April 3, 2013 by the Plaintiff is illegal.”

G. On December 3, 2014, the Korea Gas Corporation (Seoul High Court 2014Nu118) filed an application for adjudication against the Defendant on the appeal of the said lawsuit. On December 31, 2014, the Defendant issued a rejection disposition against the Korea Gas Corporation’s application for adjudication on the following grounds (hereinafter “instant disposition”).

According to Article 17 (2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, in cases where an indemnity contract has not been concluded within one year after the appraisal is conducted, the project implementer shall request another two or more appraisal business entities to re-examine the appraisal of the goods subject to the compensation. However, the appraisal report for which an application was filed at the time of the appraisal is filed on June 21, 201, and at least three years and six months have passed since the time of the price, and it is difficult for the

[Grounds for Recognition] Unsatisfy, each entry of Gap evidence 1 through 8 (including branch numbers), and the purport of the whole pleadings

2. Whether the disposition of this case is unlawful

A. The plaintiff's assertion

In Article 17(2)3 of the Enforcement Rule of the Land Compensation Act, the term “cases where an indemnity agreement has not been concluded until one year has passed after an appraisal” means cases where a consultation procedure has not been carried out on the basis of an appraisal report, but it does not mean cases where an agreement on compensation has not been reached between a person who has a right to claim compensation, even though the consultation procedure has been carried out as in the instant case. According to the Defendant’s interpretation, not only the agreement was not reached in the compensation procedure but also the adjudication procedure may not be carried out when one year has passed since a project operator did not voluntarily file an application for adjudication with respect to a claim for adjudication by an inmate, etc.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

The Defendant issued the instant disposition based on Article 17(2)3 of the Enforcement Rule of the Land Compensation Act (hereinafter referred to as the “instant provision”) and the Plaintiff asserted that the said provision does not apply. Thus, the issue of the instant case is whether the instant provision applies to a project operator who makes an application for adjudication due to the failure to reach an agreement in the compensation procedure.

In full view of the following facts, the provision of this case shall be deemed to have granted the project operator the duty of request for revaluation on the premise that the agreement is concluded prior to the public announcement of project approval, and that the provision of this case shall not apply to the procedure of acquisition or use by expropriation.

(1) Where an agreement is reached through the acquisition procedure through consultation prior to a public announcement of project approval (Article 17 of the Land Compensation Act), and where an agreement is reached in the consultation procedure subsequent to a public announcement of project approval (Article 26 of the Land Compensation Act), if a project operator files an application for confirmation of establishment of agreement with the landowner and person concerned, the Land Expropriation Committee shall confirm such agreement by applying mutatis mutandis the adjudication procedure (Article 29 of the Land Compensation Act).

(2) If a project operator fails to file an application for adjudication under Article 28 (1) within one year from the date the project approval is publicly announced, if the project operator fails to file an application for adjudication under the provisions of Article 28 (1) within one year from the date the project approval is publicly announced, the project approval becomes void on the day following the date when one year lapses from the date the project approval is publicly announced (including cases where no request for consultation is made under the proviso to Article 26 (2)), or if consultation under Article 26 is impossible (including cases where no request for consultation is made under the proviso to Article 26 (2)), the project operator may file an application for adjudication with the competent Land Tribunal, as prescribed by Presidential Decree within one year from the date the project approval is publicly announced (Article 28 (1)); if an agreement fails to be reached after the public announcement of the project approval, 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)); if the project operator again files an application for adjudication under the provisions of this case before the public announcement of project approval becomes unlawful after one year from the date the public announcement is publicly announced.

(3) In cases where the Land Tribunal examines a project operator's application for adjudication due to a project operator's failure to reach an agreement, the Land Tribunal may request an appraisal business operator or any other appraiser to make an appraisal or have him/her attend and state his/her opinion (Article 58 (1) 2 of the Land Compensation Act); in fact, in most cases, an appraisal shall be conducted again

Therefore, the instant disposition, which was made on a different premise, was rendered without legal basis and was unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

Judges

Judges Masung-young

Judges Domincs

Judge Lee Jin-han

Note tin

1) If the provisions of this case also apply mutatis mutandis to the adjudication procedure, it shall be deemed that if the Land Tribunal fails to make an adjudication at the request of the Land Tribunal until one year has passed after the appraisal was made, an adjudication shall be again requested. However, the Land Tribunal shall make an adjudication within 14 days from the date the consideration pursuant to Article 32 of the Land Compensation Act was commenced. However, if there are special reasons, it may be extended only once by up to 14 days (Article 35 of the Land Compensation Act). Thus, there may not be cases where the adjudication is not made within one year after the evaluation.