Where land determined and publicly announced as urban planning facilities is incorporated into a public project for other purposes than the original project, the method of calculating compensation amount.

Article 46 (1) of the Land Expropriation Act and Article 6 (4) of the Enforcement Rule of the Special Act on the Compensation for Public Loss and Compensation for Loss of Land where land subject to restrictions in the public law is assessed in a state that is not subject to restrictions, includes not only the case where the land determined and publicly announced as urban planning facilities is included in the initial target project but also the case where the land is incorporated into a public project for any purpose other than the initial target project.

Article 46 (1) of the Land Expropriation Act, Article 6 (4) of the Enforcement Rule of the Public Land Expropriation Act

Plaintiff 1 and five others, Plaintiffs et al., Counsel for the plaintiff-appellee and one other, Counsel for the plaintiff-appellee)

Central Land Tribunal Law Firm Han-U.S. Law Office, Attorneys Gyeong-hee et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 88Gu2825 delivered on November 14, 1988

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

We examine the grounds of appeal.

On the grounds of the judgment below, the land in this case was designated as a park site within a natural green belt under the urban planning, but on July 13, 1983, when the Director General of the Culture Center established the land in the judgment that included the land in this case as the site for the construction of the Arts Center, the Minister of Construction and Transportation made a decision to cancel the above park site for the creation of the above site, and the Minister of Construction and Transportation followed the Seoul Special Metropolitan City Mayor on February 14, 1984 on the determination of the urban planning facilities to designate it as the site for cultural facilities and completed the cadastral approval on March 30 of the same year, and then determined that the restriction under the public law as a park site that had been already designated on the land in this case before the implementation of the urban planning project for the creation of the Seoul Arts Center under Article 6 (4) of the Enforcement Rule of the Public Use and Compensation for Land, cannot be deemed to have been caused by the construction of the Arts Center, which is a cultural facility, in calculating the amount of compensation for losses under the land expropriation in this case.

However, Article 46 (1) of the Land Expropriation Act provides that the compensation for losses arising from the expropriation of land shall be based on the price at the time of the adjudication of expropriation, which shall be at a reasonable price taking into account the circumstances prescribed therein, and Article 6 (4) of the Enforcement Rule of the Special Act on the Compensation for Public Loss, which applies mutatis mutandis under Article 57-2 of the same Act provides that the compensation for the land subject to restrictions in the public law shall be assessed as limited if the restrictions in the public law are imposed on the land subject to restrictions in the public law, except for the cases where the restriction in the public law directly aims at the implementation of the public project, and it shall be assessed as limited in the state where the restriction in the public law directly aims at the implementation of the public project. The term "where the public project is implemented for the direct purpose" in this context refers to not only the case where the land determined and announced as urban planning facilities is expropriated into the original purpose project,

This is because, unlike Article 2 (1) 1 (b) of the Urban Planning Act, if the land, the special restriction of which has become an urban planning facility, is to be incorporated into a railroad site or school site into a public project other than the original target project, if it is interpreted that there is a limit in the public law as an urban planning facility originally determined and publicly announced on the ground that it does not become a direct purpose of the implementation of the public project, it would be very unreasonable because the method of assessment would be significantly different depending on the situation as to whether the land determined and publicly announced as an urban planning facility is incorporated into a public project other than the original target project or if it would be incorporated into another public project after the original target project, and it would also be contrary to the purpose of Article 6 (4) of the Enforcement Rule of the same Special Cases.

Therefore, as determined by the court below, if a park site is cancelled by the decision of alteration of urban planning facilities at the time of the decision of expropriation of the land in this case and is designated as a cultural facility site, and if the land in this case was expropriated as a site for the construction of the Seoul Arts Center, which is a cultural facility, the restriction under public law in accordance with the designation of the cultural facility district, has been promoted for the direct purpose of the construction of the Seoul Arts Center, which is the public project in this case. Thus, even if the park site was cancelled for the designation of the cultural facility district in this case, it shall be evaluated as without any limit as a park site, so long as it is incorporated into a public project, which is the construction of the Seoul Arts Center,

Nevertheless, the lower court’s determination that the amount of compensation should be calculated by evaluating the condition of restrictions as a park site on its reasoning cannot be deemed to have affected the conclusion of the judgment by misapprehending the legal doctrine under Article 6(4) of the Land Expropriation Act and the Enforcement Rule of the Public Compensation for Loss of Land, etc.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ansan-man (Presiding Justice)