[1] The method of selecting a standard place where there are several comparative standard places where the land to be expropriated in an urban area and a specific use area are the same, and where there are several comparative standard places where the land to be expropriated in an urban area and the actual use status are the same

[2] In a case where the court below adopted the appraisal results selected as a comparative standard for the land subject to expropriation in the housing site development project, the land category of which is an orchard, orchard, farm house site, dry field, and dry field, and the specific use area is indicated as “agricultural and forest area” under the land utilization plan confirmation, the case holding that the court below erred in the misapprehension of legal principles as to the selection of comparative standard land by recognizing the specific use area of the above land as a “management area” on the ground that it cannot be deemed that the specific use area of the above land was designated as a “management area” on the ground that the appraisal results

[1] Unless there are special circumstances, the comparative standard place shall give priority to the specific-use area in an urban area, and shall be selected by giving priority to the actual land category in accordance with the actual situation of use outside the urban area. In addition, where the land to be expropriated is located in an urban area, where there are several comparative standards with the same specific-use area, the land should be selected as a comparative standard place to apply the land in question, which is identical or similar to the land to be expropriated, in consideration of the characteristics such as the actual situation of use, land category in the public record, surrounding environment, location, etc. In addition, where the land to be expropriated is located outside the urban area, and where there are several comparative standards place with the same specific-use area, if there are several

[2] In a case where the court below adopted the appraisal result of the first instance court selected as a comparative standard paper for the land subject to expropriation in the housing site development project, the land category of which is classified as orchard, orchard, farm house site, dry field, and dry field, and the land subject to expropriation in the housing site development project, which is marked as “agricultural and forest area” in accordance with the land use planning confirmation, the case holding that the court below erred in the misapprehension of legal principles as to the selection of comparative standard papers, on the ground that the above land cannot be deemed as designated as an agricultural development area, solely on the ground that it cannot be seen as designated as an agricultural development area, since the land is similar to the land of “agricultural and forest area” and natural and social conditions, such as the specific use area, specific use area, surrounding environment, etc., selected as a comparative standard paper, without considering the possibility of designation and alteration of the above land,

[1] Article 21 of the Public Notice of Values and Appraisal of Real Estate Act / [2] Article 21 of the Public Notice of Values and Appraisal of Real Estate Act, Articles 70 and 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 99Du7968 delivered on March 27, 2001 (Gong2001Sang, 1021) Supreme Court Decision 2005Du8825 Delivered on December 21, 2006, Supreme Court Decision 2006Da64627 Delivered on September 10, 2009 (209Ha, 1599)

Plaintiff (Law Firm Gyeong & Yang, Attorneys Yang Jong-soo et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Jong-ho, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Nu14694 decided January 23, 2009

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

The grounds of appeal are examined.

1. As to the second ground for appeal

Article 42(1), (2), and (4) of the former Act on the Special Measures for Development of Agricultural and Fishing Villages (amended by Act No. 4817, Dec. 22, 1994; Act No. 9717, May 27, 2009; Act Article 2 of the Addenda of the Framework Act on Agriculture and Fisheries, Rural Community and Food Industry); Article 48(1) and (2) of the former Enforcement Decree of the Act on the Special Measures for Development of Agricultural and Fishing Villages (amended by Presidential Decree No. 14835, Dec. 22, 1995); Article 42(1), (2), and (4) of the former Enforcement Decree of the Act on the Special Measures for Development of Agricultural and Fishing Villages (amended by Presidential Decree No. 14835, Dec. 22, 1995); Article 48(1) and (2) of the former Enforcement Decree of the Act on the Special Measures for Development of Agricultural and Fisheries (amended by Act No. 2500, Jan. 25, 200000).

According to the reasoning of the judgment of the court below and the court of first instance as cited by the court below, the following facts are acknowledged based on the adopted evidence, and since the first standard as to whether the land of this case is included in the agriculture promotion area shall be based on the designated drawing at the time of public announcement in 1992, and if the designated drawing is unclear, the first standard should be based on the designated drawing at the time of public announcement in 1992. If the land of this case was inspected to the general public at the time of public announcement or the various circumstances surrounding the land of this case, the first instance court determined that even according to the result of the survey appraisal of the first instance court, the boundary line of the agriculture promotion area on the topographical map of 1/25,00 at the time of public announcement in 200 was included in the land of this case on a scale of 1,500 square meters at the time of public announcement in 197,2364 square meters at the time of rearrangement of the farmland promotion area, the land of this case was not included in the land of this case 970 square meters at the same time.

In addition, the lower court determined as follows: although the instant land is indicated in the topographical map at the time of the public notice in 2000 as if the land was located in the agriculture promotion area; however, the public notice in 2000 was difficult to confirm whether the instant land was incorporated by lots only on the topographical map at the time of public notice in 1992, and it is merely a fact that it is difficult to confirm whether the said agriculture promotion area was incorporated by lots on a scale of 1/5,000 after the lapse of the topographical map indicating the parcel number of 1/5,00 of the agricultural promotion area and the result of public notice, it is nothing more than a fact that the instant land is mistakenly indicated as the land located in the agricultural promotion area in the course of public notice, and it is not a fact that there was a procedure of designation or change of the agricultural promotion area under the relevant Acts and subordinate statutes, such as Articles 30, 32 and 33 of the former Farmland Act (amended by Act No. 6597, Jan. 14, 200

In light of the relevant statutes, the above legal principles, and records, such determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine as to the designation of an agricultural promotion area,

In addition, Article 6 of the former Act on the Special Measures for Development of Agricultural and Fishing Villages (amended by April 7, 1990) provides that the existing absolute farmland shall be the land outside the agriculture promotion area, and the counterpart farmland shall be the land outside the agriculture promotion area, so if the land in this case was the absolute farmland, the argument that the land in this case shall be the land in the agriculture promotion area shall be the land in the first place

2. Regarding ground of appeal No. 1

The comparative standard shall take precedence over the specific use area in an urban area, and shall be selected by taking precedence over the actual land category according to the actual situation of use outside an urban area (see, e.g., Supreme Court Decisions 9Du7968, Mar. 27, 2001; 2006Da64627, Sept. 10, 2009).

In addition, in case where the land to be expropriated is located in an urban area and there are several comparative standards for the land to be expropriated, the land to be expropriated shall be selected as a comparative standard place to be applied to the relevant land in consideration of the characteristics such as the actual situation of utilization, land category in the public record, surrounding environment, location, etc. (see Supreme Court Decision 2005Du8825, Dec. 21, 2006, etc.). Likewise, in case where the land to be expropriated is located outside the urban area and there are several identical comparative standards for the land to be expropriated, if there are several same comparative standards to be applied to the relevant land, it shall be selected as a comparative standard place to apply the relevant land

According to the reasoning of the judgment below and the record, the land of this case was classified as orchard, orchard, farm house site, dry field, and dry field at the time of the decision of expropriation. In reality, the land of this case was used as a specific use area under the National Land Planning and Utilization Act on the land use planning confirmation document. Meanwhile, the expropriation appraisal decision has similar land and actual use status in the land of this case, and the land of this case is also selected as a comparative standard for the same use area, while the appraisal of the first instance court, which was adopted by the court of first instance, selected as a comparative standard for the land of this case 169-1, 502 square meters in Masan-ri, 169-4, 248-4, 669 square meters in both sides of Kimpo-si, the real use status of the land of this case was similar, but they can be known that the specific use area is a management area.

In light of these facts in light of the above legal principles, the above grain 1159 land selected as a comparative standard place in the appraisal and assessment of the first instance court is similar to the land in this case in light of the characteristics such as specific use area and surrounding environment, etc. compared to the above Minsan 169-1, 248-4 land selected as a comparative standard place in the appraisal and assessment of the first instance court. Therefore, the court below should have taken measures such as adopting the most appropriate one out of the land based on the premise that the land in this case is an agricultural and forest area among the appraisal and assessment of the first instance court or the appraisal and assessment of the first instance court. Nevertheless, the court below recognized the specific use area as an agriculture promotion area only on the ground that the land in this case cannot be deemed as being designated as the agricultural and forest area, without considering the possibility of designating and changing the subsequent specific use area. The court below adopted the appraisal result of the first instance court which selected the above Minsanri 169-1, 248-4 land as a control area.

3. Conclusion

Therefore, 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 Shin Young-chul (Presiding Justice)