In cases where a project implementer under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor compensates for trees at the price of trees pursuant to the proviso of Article 75 (1) 1 of the same Act with respect to trees that impede the implementation of a project, but fails to acquire trees by consultation or expropriation, whether the owner of trees bears the duty to transfer obstacles pursuant to Article 43 of the same Act (negative in principle), and whether the project implementer may demand the owner of trees to transfer or cut trees (negative in principle)

Article 75(1)1, 2, 3, (5), and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), Article 37(2), (3), and (5) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule of the Land Compensation Act”), in light of the purport of expropriation compensation for obstacles under the Land Compensation Act and the principle of just compensation or reasonable price compensation, where a project operator compensates for obstacles that hinder the implementation of a project at the price pursuant to the proviso of Article 75(1)1 of the Land Compensation Act, the project operator cannot be deemed to have acquired ownership only for the relevant goods unless he/she has gone through consultation or expropriation, but the project operator cannot be deemed to have acquired the relevant goods at the price of the land for which he/she is entitled to take measures under the proviso of Article 75(1)1 of the Land Compensation Act, unless he/she has exploited the relevant goods at the price of his/her own land within a reasonable period of time that he/she fells the project.

Article 43, Article 75(1)1, 2, 3, and (5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 75(6) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (Amended by Act No. 11690, Mar. 23, 2013); Article 97 Subparag. 4 (see current Article 95-2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 12972, Jan. 6, 2015); Article 37(2), (3), and (5) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 2010Da94960 Decided April 13, 2012 (Gong2012Sang, 776)

Defendant

Prosecutor

Attorney Cho Sung-sung

Busan District Court Decision 2014No2706 Decided November 6, 2014

The appeal is dismissed.

The grounds of appeal are examined.

Article 75(1)1, 2, 3, (5), and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), and Article 37(2), (3), and (5) of the Enforcement Rule of the Land Compensation Act for obstacles under the Land Compensation Act, and the principle of just compensation or reasonable compensation. In light of the purport of expropriation compensation for obstacles under the Land Compensation Act, and the principle of reasonable compensation, where a project operator compensates for obstacles that interfere with the implementation of a project pursuant to the proviso of Article 75(1)1 of the Land Compensation Act, the project operator cannot be deemed to have acquired the ownership of the relevant goods only on the basis of such compensation unless he/she has gone through consultation or expropriation, but the project operator cannot be deemed to have acquired the ownership of the said goods at the price of the said goods unless he/she gains the ownership of trees within a reasonable period that does not interfere with the implementation of the project. In addition, the project operator cannot directly acquire the value of the said goods at the price of 10 (see Article 375(1).6).14).

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to reverse the judgment of the first instance that found the Defendant guilty of the instant facts charged and to find the Defendant not guilty on the ground that there is insufficient evidence to support that the Defendant did not bear the duty of transferring the instant trees and the Defendant did not deliver the instant trees to the project implementer

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)