(영문) 대전지방법원 2018.1.31. 선고 2017구합103770 판결

On May 25, 2017, the defendant revoked the disposition of objection against expropriation, such as the land listed in the annexed sheet against the plaintiff on May 25, 2017.

Reasons

1. Details of ruling;

(a) Approval and public notification of the project;

- Project name: Guang City Urban Development Project (B)

- Project operator: C Co., Ltd. (hereinafter referred to as “project operator of this case”).

Notice: Gyeonggi-do Public Notice D ( April 2, 2010), E ( March 28, 2012), F ( April 10, 2014), and G ( April 9, 2013) publicly notified in king-si ( April 2013).

C. The ruling of expropriation made on August 29, 2016 by the Gyeonggi-do Local Land Tribunal (hereinafter referred to as “instant expropriation ruling”).

The plaintiff requested the expropriation of the remaining land as to the land listed in the attached list (hereinafter referred to as the "land of this case"). However, the Gyeonggi-do Regional Land Tribunal dismissed the plaintiff's request for expropriation of the remaining land on the ground that it is not substantially difficult to use the remaining land for its original

C. The Defendant’s objection ruling on May 25, 2017 (hereinafter “the instant objection ruling”) cannot be deemed as significantly difficult to use the remaining land for its original purpose. The Defendant dismissed the Plaintiff’s objection claiming to expropriate the remaining land on the grounds that it would be significantly difficult to use the remaining land for its original purpose.

2. Whether the lawsuit of this case is lawful

A. The plaintiff's assertion

As the land of this case owned by the Plaintiff was expropriated, it was difficult to use the land for the original purpose because it was impossible to use or cultivate the land due to traffic congestion. Nevertheless, it is illegal for the Defendant to dismiss the Plaintiff’s objection. Thus, the ruling of this case should be revoked.

B. The defendant's main defense

1) The instant lawsuit is an objection to the dismissal of the Plaintiff’s objection claiming the acceptance of the remaining land by the Defendant, and thus, constitutes a lawsuit seeking revocation of the instant objection, which ultimately constitutes a lawsuit seeking an increase or decrease in compensation. Therefore, it is unlawful for the Plaintiff to make the instant project implementer as the Defendant and seek revocation of the instant decision against the Defendant.

2) If the Plaintiff wishes to lose the validity of the instant land expropriation, it is unlawful to seek revocation of the instant objection against the Defendant, even though the Gyeonggi-do Regional Land Expropriation Committee, which is the instant land expropriation adjudication authority, should be the Defendant.

C. Determination

1) In full view of the language and text of Article 85(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) and Articles 83 and 85 of the same Act provide that an objection against the Central Land Expropriation Committee may be filed voluntarily, and the proviso to Article 19 of the Administrative Litigation Act provides that an adjudication against an administrative appeal may be filed only in cases where the adjudication itself is based on an inherent error in the adjudication itself, the adjudication against an administrative appeal shall be filed subject to revocation of the adjudication. In a case where an objection is filed against the adjudication on expropriation, the Central Land Expropriation Committee or the Local Land Expropriation Committee which made the adjudication on expropriation shall request revocation of the adjudication by designating the defendant, even after the objection is filed. However, where the adjudication on the objection is filed on the ground that there is an inherent error in the adjudication itself, the Central Land Expropriation Committee, which made the adjudication, may seek revocation of the adjudication (see, e.g., Supreme Court Decision 2008Du1504, Jan.

A claim for expropriation of remaining land recognized pursuant to the Land Compensation Act is a right granted to a landowner as a part of a compensation for loss and meets the requirements therefor, and has a formative nature that may arise from the effect of expropriation upon such claim, even if there is no adjudication by the Land Tribunal that expropriates the remaining land. Therefore, a lawsuit filed by a landowner against the adjudication by the Land Tribunal that rejected the claim for expropriation of the remaining land falls under the “ lawsuit concerning increase or decrease of compensation as stipulated in Article 85(2) of the Land Compensation Act” and thus, the project operator shall be the defendant (see, e.g., Supreme Court Decisions 2008Du822, Aug. 19, 2010; 2014Du46669, Apr. 19, 2015).

2) In light of the above legal principles, the grounds for the Plaintiff’s assertion that the instant judgment was unlawful cannot be deemed unlawful, that is, the inherent illegality of the Defendant’s authority or composition, or the procedure, form, or content of the instant ruling on the objection. Furthermore, if the Plaintiff is dissatisfied with the instant ruling on the acceptance of the remaining land, it would be sufficient to seek a reasonable compensation against the project operator for the payment of the remaining land, and it would not be necessary to seek a revocation of the instant ruling against the Defendant.

Therefore, the instant lawsuit is unlawful because there is no qualification and legal interest of the Defendant. The Defendant’s origin

Safety defenses are reasonable.

3. Conclusion

Therefore, since the lawsuit of this case is unlawful, it is decided to dismiss it. It is so decided as per Disposition.