[1] The criteria for distinguishing between the discontinuance of business and the suspension of business in compensating for business losses (=the possibility of transfer of business) and the method of determining such criteria

[2] The case holding that it is difficult to readily conclude that it is substantially difficult to move the two pigs to the adjacent areas solely on the assumption that there is a possibility that residents may oppose environmental pollution, such as malodor, impulse generation, and farmland pollution when the two pigs are transferred or newly constructed

[1] In full view of the provisions of Article 4(4) of the Special Act on Land Expropriation for Public Use, Article 2-10(7) of the Enforcement Decree of the same Act, Article 24(1), Article 24(2)3 of the same Act, Article 25(1), (2), and (5) of the Enforcement Rule of the same Act, in case of compensation for business losses, the criteria to distinguish whether the business is deemed to be a discontinuance of business or as a suspension of business pursuant to Article 24(2)3 of the Enforcement Rule of the same Act can be transferred to another place within the location of the place of business or within the neighboring Si/Gun/Gu. The determination of the possibility of transfer should be made by taking into account whether there are obstacles to the transfer of the business in question, the type and characteristics of the business in question, the size and characteristics of the business facilities in question, the current status and characteristics of the adjacent areas, and the existence of actual obstacles to the transfer of residents, such as efforts by the parties to transfer.

[2] The case holding that it is difficult to readily conclude that it is considerably difficult to transfer the two houses to adjoining areas solely on the assumption that there is a possibility that there is a concern for residents to oppose environmental pollution, such as malodor, shocking, and farmland pollution when the two houses are transferred or newly built, even if there is no special cause to obstruct the relocation or construction of the two houses, considering the size of the two houses, the actual use of the lands and characteristics of the areas and adjoining areas where the two houses are located, and the relocation or construction of

[1] Article 57-2 of the Land Expropriation Act, Article 4(4) of the Special Act on the Compensation for Public Loss, Article 2-10(7) of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 24(1), Article 24(2)3, Article 25(1), (2), and (5) of the Enforcement Rule of the Special Act on the Compensation for Public Loss and Compensation for Loss / [2] Article 57-2 of the Land Expropriation Act, Article 4(4) of the Special Act on the Compensation for Public Loss, Article 2-10(7) of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 24(1), (2)3, Article 25(1),

[1] Supreme Court Decision 89Nu7719 delivered on October 10, 1990 (Gong1990, 2286), Supreme Court Decision 94Nu882 delivered on December 23, 1994 (Gong1995Sang, 698), Supreme Court Decision 97Nu3972 delivered on October 26, 199 (Gong199Ha, 2433), Supreme Court Decision 99Du3645 delivered on November 10, 200 (Gong2001Sang, 43), Supreme Court Decision 200Du1003 delivered on November 13, 201 (Gong202, 68)

Plaintiff (Attorney Kim Jong-il et al., Counsel for the plaintiff-appellant)

Central Land Tribunal and one other (Attorney Kim Shin-hwan, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Nu3626 delivered on May 15, 2002

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, with respect to the plaintiff's claim seeking the cancellation of the judgment of this case, which rejected the plaintiff's claim for the closure of the business and recognized only compensation for suspension of work, the court below acknowledged that the plaintiff's claim for the cancellation of the judgment of this case regarding the fish farms of this case incorporated into the second construction project zone for the Seocheon-do and Seo Seocheon-do Highway, and the second construction project zone for the Seocheon-do and the second construction project zone for the Seocheon-do and sought compensation for suspension of work, there is no legal obstacle that the transfer of the fish farms of this case is absolutely impossible. However, the court below acknowledged that the plaintiff made efforts to see the specific place for the purpose of transferring livestock facilities and enter into a lease contract for the purpose of transferring the livestock industry, while the plaintiff made continuous inquiries as to whether it is possible to move or install livestock facilities to the neighboring Si/Gun local governments, and that the fish industry is expected to have caused environmental problems, such as harmful insects, soil pollution, etc. due to malodor and wastewater discharge among residents and to have been recognized as a considerable objection to the new construction or relocation.

2. Judgment of the Supreme Court

In full view of the provisions of Article 4(4) of the Public Land Expropriation Act, which applies mutatis mutandis under Article 57-2 of the Land Expropriation Act, Article 2-10(7) of the Enforcement Decree of the same Act, and Article 24(1), 24(2)3, 25(1), (2), and (5) of the Enforcement Decree of the same Act, compensation for operating losses depends on whether it is possible to transfer the business to another place in the location of the place of business or in the adjacent Si/Gun/Gu where the business is located or where the business is suspended or where it is possible to transfer the business in question to another place in the area of the Si/Gun/Gu (see, e.g., Supreme Court Decision 200Du1305, Nov. 10, 200; Supreme Court Decision 200Du1631, Oct. 31, 2005).

However, according to the records, 1, 43 households were located in Seocheon-gun and its neighboring Si/Gun/Gu, 1, 1, 2, 3, 4, 9, 9, 9, 76, 9, 9, 194, 194, 101, 37, 197, 9, 96, 196, 9, 196, 9, 196, 9, 9, 96, 9, 196, 9, 196, 9, 196, 9, 9, 96, 196, 9, 196, 9, 196, 9, 196, 9, 197, 197, 37, 197, 196, 96, 196, 9, 196, 96, 15, 96, 96, 1, 16, 16, 2, 96, 2, 3., 2, 3., 3., 3.

Meanwhile, on July 12, 199, the Plaintiff: (a) concluded a lease contract with the owner on the land of Seocheon-gun ( Address 2 omitted); and (b) asked the head of Seocheon-gun to use each of the above land as a livestock industry site; (c) however, on July 26, 199, the head of Seocheon-gun sent a reply that it is considerably difficult for the Plaintiff to move or build a livestock shed on the ground that there is an objection against nearby residents because elementary schools and student meal places are located in the vicinity of the above area; and (d) on July 15, 1999, the lease contract was concluded with the owner on the land of Bocheon-gun ( Address 3 omitted) and then it was possible for the Mayor to use the above land as a livestock industry site; (c) on July 29, 1999, the installation of livestock industry facilities was limited to the forest designated as the river reserve; (d) even if the above land did not have any restrictions under the Forestry Act, it cannot be concluded that the Plaintiff could not have any more practical efforts to move or respond to the surrounding land.

In light of the following circumstances, even if there is a possibility that there is a concern for residents to oppose environmental pollution, such as malodor, insect pests, and farmland pollution, in the event of transfer or new construction of the fish farm, it is difficult to readily conclude that it is considerably difficult to move the fish farm to the adjacent areas due to such foster circumstance alone, in light of the size of the fish farm in this case, the land use status and characteristics of the Seocheon-gun, Gun, or Gu area where the fish farm in this case is located, and the relocation or new construction of the fish farm in this case.

Nevertheless, the court below held that the transfer of the instant amount of money to the Plaintiff was unlawful on the ground that it is considerably difficult for the Plaintiff to consider the possibility of transfer of the instant amount of money without considering the possibility of transfer of the instant amount of money, and that there was an error of law by misunderstanding the legal principles on compensation for loss caused by discontinuance of business, which led to failure to exhaust all necessary deliberation, or by misunderstanding facts against the rules of evidence. The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)