2011Nu33657 Confirmation of the existence of a related person

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Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

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A legal representative ○○○

Litigation performer ○○○

Suwon District Court Decision 2009Guhap4253 Decided August 16, 2011

June 28, 2012

July 19, 2012

1. On May 23, 2012, the defendant's rejection disposition against the plaintiff of the business compensation claim is revoked upon an exchange change in the trial.

2. All costs of the lawsuit shall be borne by the Defendant.

1. Purport of claim

The plaintiff is entitled to receive business compensation as stated in the purport of the appeal below from the first instance court (as stated in the purport of the appeal below).

A lawsuit seeking the revocation of the rejection disposition of the application for business compensation in the first instance.

A change was made in exchange.

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall be 28,572,250 won and its related persons on April 19, 2011 to the plaintiff.

20% per annum from the day after the delivery of a copy of the application for modifying the purport of the claim to the day of complete payment.

d. Payment of money:

1. Details of the disposition;

A. On October 15, 2009, the Defendant, as a project implementer of the instant project (hereinafter referred to as the “instant project”), determined the road zone and topographical drawings, and announced it to △△△△△△△ on October 15, 2009, 542 meters (after 486 - 14 land) among △△△ (hereinafter referred to as “instant land”) was included in the instant project site.

B. Meanwhile, as the compensation procedure for the instant land was in progress on November 2009, appraisal related to compensation was conducted, the Plaintiff requested consultation on business compensation to the Defendant at that time, and at that time, the Plaintiff was engaged in waste collection and transportation business by obtaining lawful permission after leasing the instant land on July 2008, and the landowner (in this case, 1) around May 2009, had the building constructed on the instant land. As the building owner (in this case, e.g., e., e., e., the Plaintiff temporarily transferred the adjacent land to the adjacent land, but still used the instant land as the waste storage and parking lot, the Plaintiff refused consultation on the ground that it cannot be recognized that the Plaintiff was operating the instant land at the time of the public announcement of the project approval.

C. Accordingly, on December 28, 2009, the Plaintiff stated that “the Plaintiff is in the position of the person concerned with the land of this case” in filing a lawsuit against the Defendant, and subsequently amended the purport of the claim to seek payment of KRW 28,575,250 of the business (suspension) loss compensation and its delay damages. However, on August 16, 201, the court of first instance rendered a judgment dismissing the lawsuit on the ground that “the Plaintiff seeking payment of business compensation without going through a judgment is unlawful.”

D. After filing an appeal, the Plaintiff filed a request with the competent Land Tribunal to file an application for adjudication on the Plaintiff’s business compensation with the Defendant, among May 2012, 2012, but the Defendant May 2012.

23. A disposition rejecting the Plaintiff’s claim for adjudication on the ground that the Plaintiff does not constitute a person entitled to business compensation (hereinafter “instant disposition”). Accordingly, the Plaintiff filed an application for modification of the lawsuit seeking revocation of the instant disposition on June 25, 2012 and obtained permission for modification of the lawsuit by the court.

[Ground of recognition] Unsatisfy, Gap evidence 9, 10, Eul evidence 1 and 2, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

Although the Plaintiff is eligible for business compensation following the implementation of the instant project, the instant disposition rejecting the Plaintiff’s claim for adjudication on business compensation is unlawful.

B. Determination

(1) Article 30(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Act”) provides that if an agreement is not reached after a public announcement of project approval, owners of land and persons concerned may request a project operator to file a written application for adjudication under the conditions as prescribed by the Presidential Decree. The above provision provides that where an application for adjudication can be filed, "when an agreement is not reached between a project operator and landowners and persons concerned (hereinafter “owners, etc.”)" but does not restrict the grounds for adjudication, such as where an agreement is not reached due to different opinions on the object of compensation. The purport of granting a right to request a land owner, etc. to file an application for adjudication is that if the land is acquired or used by a public project operator without determination of legal relations on compensation for losses, it is clear that the land owner, etc. is not subject to consultation under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and thus, it does not constitute "where the land owner, etc. is not subject to consultation under the jurisdiction of the Supreme Court."

3. Conclusion

If so, the plaintiff's claim of this case, which was changed in exchange in the trial, is justified, and it is decided as per Disposition (the lawsuit of claim for the payment of business compensation before the change is withdrawn due to the exchange change in the trial, so the judgment of the court of first instance was invalidated).

Judges Cho Jae-ho

Judges Park Jong-tae