In a case where a project operator of a public works project acquires part of a group of land belonging to the same owner or uses it, or a change of the actual use status or the use value and exchange value of the remaining land remaining after the use thereof, but the loss is not caused by the acquisition or use of a part of the land for the public works, whether the remaining land is subject to compensation for losses under the main sentence of Article 73(1) of the Act on Acquisition of

The main text of Article 73(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that “If the price of the remaining land is reduced or there is any other loss due to the acquisition or use of part of a group of land belonging to the same owner, or if it is necessary to construct a passage, ditch, fence, etc. or to perform other construction works on the remaining land, the project operator shall compensate for such loss or construction expenses, as prescribed by Ordinance of the Ministry of Land,

In this context, a loss to be compensated by a project operator for a specific public project is premised on the premise that a project operator acquires or uses part of a group of land belonging to the same owner for the public project, resulting in the remaining land due to such acquisition or use by the project operator. Therefore, even if a change of the actual use of the land or a decline in the value of use and exchange regarding such remaining land, barring special circumstances, barring any special circumstance, it cannot be deemed that such loss is subject to compensation for the remaining land under the main sentence of Article 73(1)

Article 73(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

See Attached List of Plaintiffs (Law Firm Uniform et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Tae-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2016Nu60494 decided March 17, 2017

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. The main text of Article 73(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that “If the price of remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same owner, or the construction of a passage, ditch, fence, etc. or other construction works are necessary on the remaining land, the project operator shall compensate for such losses or construction costs, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.”

In this context, a loss to be compensated by a project operator for a specific public project is premised on the premise that a project operator acquires or uses part of a group of land belonging to the same owner for the public project, resulting in the remaining land due to such acquisition or use by the project operator. Therefore, even if a change of the actual use of the land or a decline in the value of use and exchange regarding such remaining land, barring special circumstances, barring any special circumstance, it cannot be deemed that such loss is subject to compensation for the remaining land under the main sentence of Article 73(1)

B. Review of the reasoning of the lower judgment and the first instance judgment partially accepted by the lower court reveals the following facts.

(1) The Defendant: (a) was a project implementer in charge of compensation for the site of an expressway (hereinafter “instant public works”); (b) was a group of lands owned by the Plaintiffs (Plaintiff 13 died on November 4, 2008 through June 21, 201, and the co-inheritors took over a lawsuit on February 4, 2016 during the lawsuit but, on the convenience of the lawsuit, the co-inheritors took over part of the lawsuit (hereinafter “the remaining land”). The remaining land of this case is located in the south side of the said expressway “○○IC”; and (c) was farmland consisting of farmland and village development, such as electric power, paddy field, etc.; and (d) the land category and actual use status of the land and the answer, etc. were “forest,” and the remaining land of this case were acquired by consultation, regardless of whether before and after the death.

(2) On September 5, 201, the Minister of Land, Transport and Maritime Affairs designated and announced the area up to 20 meters from the boundary line of the road zone on both sides of the expressway as a clearance zone. However, on July 29, 2015, the area was reduced to 10 meters from the boundary line of the road zone.

(3) On March 25, 2013, the instant public works were completed, and on March 14, 2014, the Plaintiffs filed a claim against the Defendant for compensation for losses incurred in the reduction of the price of the remaining land. Upon the Defendant’s refusal of compensation consultation on March 24, 2014, the Plaintiffs filed an application for adjudication with the Central Land Expropriation Committee on May 8, 2014, but the Central Land Expropriation Committee dismissed the Plaintiffs’ application for adjudication on May 21, 2015 on the ground that the reduction of the price of the remaining land in the instant case cannot be recognized.

(4) The Plaintiffs filed the instant lawsuit against the Defendant seeking compensation for losses of the remaining land of this case pursuant to Article 73(1) of the Land Compensation Act. However, the Plaintiffs were dismissed on the ground that: (a) the evidence submitted by the Plaintiffs alone is insufficient to recognize the decline in the value of the remaining land of this case due to the reduction of efficiency due to the reduction of land size or change, aggravation of land conditions due to the difficulty in entering and leaving access, and aggravation of environmental conditions due to automobile noise; and (b) losses from the designation of a clearance zone due to the designation of a clearance zone was not caused by the partial incorporation of land due to the instant public works but by the separate administrative act of the Minister of Land, Infrastructure and Transport, and thus, it does not constitute losses to be compensated by the Defendant.

C. We examine the facts and legal principles as seen earlier, and the relevant laws and regulations, supra, whether a claim may be made pursuant to Article 73(1) of the Land Compensation Act for losses arising from the designation of a clearance zone.

(1) Article 49(1) of the former Road Act (wholly amended by Act No. 12248, Jan. 14, 2014; hereinafter “former Road Act”) provides that “The road management agency may designate a clearance zone within the extent not exceeding 20 meters from the boundary line of the road in order to prevent damage to road structures, to preserve the scenic view, or to prevent any danger to traffic, as prescribed by Presidential Decree,” and Article 49(3) of the same Act provides that “no act falling under any of the following subparagraphs shall be prohibited in a clearance zone: Provided, That the same shall not apply to any act prescribed by Presidential Decree:

Furthermore, Article 53(1) of the former Road Act provides that “Where a clearance zone is designated, any land located within the clearance zone is unable to be used for its original purpose due to such designation, and thus its utility has been significantly reduced, or where the owner is practically unable to use and make profits from such land, if the relevant land meets certain requirements, the road management agency may request the purchase of such land.” Article 92(1) provides that “If a person suffers losses due to a disposition or restriction made by the Minister of Land, Infrastructure and Transport, the loss due to the disposition or restriction made by the Minister of Land, Infrastructure and Transport shall be compensated from the National Treasury, and the loss due to a disposition or restriction made by other administrative agencies shall be compensated from the local government to which the administrative agency belongs,” and Article 53(2) and (3) provides that “The consultation on compensation for losses

(2) Examining the language, structure, and purport of such relevant statutes, the losses of the remaining land of this case claimed by the Plaintiffs, namely, the designation and announcement of part of the land as a clearance zone, that is, losses which fall in the future usage value and exchange value in light of the possibility of future use or the ease of transaction, etc., due to the prohibition of a certain form and quality alteration or construction by the designation and announcement of part of the land as a clearance zone, does not occur due to the acquisition or use of part of a group of land owned by the Plaintiffs in the instant public works project on the construction of an expressway, but due to the measures that the Minister of Land, Infrastructure and Transport designates and publicly notifies

(3) In the same purport, the lower court is justifiable to have determined that the decline due to the designation of a clearance zone as claimed by the Plaintiffs did not constitute a decrease in the price of the remaining land as stipulated in Article 73(1) of the Land Compensation Act. In so doing, the lower court did not err by misapprehending the legal doctrine on compensation for the decrease in the price of the remaining land as stipulated in

2. Regarding ground of appeal No. 2

In order to seek compensation for losses based on the former Road Act, it is necessary to file a claim against the administrative body in accordance with the procedures of consultation, adjudication, etc. prescribed by the same Act. The allegation in the grounds of appeal to this different purport is

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Ko Young-han (Presiding Justice)