Plaintiff 1 and one other (Law Firm Cheongh, Attorneys Ba-young et al., Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm Sejong, Attorneys Go-hee et al., Counsel for defendant-appellant)

March 7, 2017

Suwon District Court Decision 2015Guhap61215 Decided October 19, 2016

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

The defendant shall pay 14,898,000 won to the plaintiff 1, 26,892,90 won to the plaintiff 2, and 5% per annum from August 13, 2016 to March 28, 2017, and 15% per annum from the next day to the day of full payment.

2. The plaintiffs' remaining appeals are dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim

The defendant shall pay 17,273,300 won to the plaintiff 1, 26,892,90 won to the plaintiff 2, and each of the above amounts, 5% per annum from February 12, 2014 to the service date of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 15% per annum from the next day to the day of full payment.

Purport of appeal

The part against the plaintiffs, which orders payment under the judgment of the first instance, shall be revoked.

The defendant shall pay to the plaintiff 1 14,898,00 won, 26,892,900 won, and 26,892,900 won, with 15% interest per annum from the day following the day of service of the copy of the application for modification of the claim and the cause of the claim of this case to the day of complete payment.

1. Basic facts

【Evidence Evidence Evidence Nos. 1-1, 6, 7, and 2-1, 6, 7, and 1-1, 2-2, and 2-1, 2-1, and 2-2, respectively, and the purport of the whole pleadings

(a) Approval and public notification of the project;

- Project name: Railroad Construction Project (Seongnam-Si 15th City Do 15th City hereinafter referred to as the “instant Project”).

-Public Notice: No. 2012-756, Jun. 4, 2013, Public Notice of the Ministry of Land, Transport and Maritime Affairs No. 2013-278, Nov. 6, 2012

- Project operator: Defendant

(b) Land to be expropriated and remaining land;

- Land to be expropriated: as shown in [Attachment 1] in the column “land (○○○ in e.g., Dongcheon-si)” (hereinafter “each land of this case”).

- The remaining land: as shown in [Attachment 2] in the column of “the remaining land after incorporation (○○○, e.g., the Bupyeong-si)” (hereinafter “each remaining land of this case”).

C. The Central Land Expropriation Committee’s ruling on expropriation on December 19, 2013 (hereinafter “instant adjudication on expropriation”)

- Compensation for expropriation: The details of compensation for expropriation in attached Table 1 are as shown in the column of “amount of compensation for expropriation”.

- Claim for compensation for damages for the decrease in the price of the remaining land: "The person in charge can make it difficult to determine the decline in the value of the remaining land in the present condition, and make it possible to determine the accurate decline in value after the completion of the construction, so it shall be treated again if there is a claim for compensation for the decline in the value of the remaining land after the completion of the construction

- Commencement date of expropriation: February 11, 2014

D. The Central Land Tribunal rendered an objection on January 22, 2015 (hereinafter “instant objection judgment”)

- Contents of an objection: The details of compensation for land in attached Table 1 are as shown in the column of “amount of compensation for objection” in the details of compensation for land.

- Claim for compensation for losses due to a decrease in the price of remaining land: dismissed for the same reason as the adjudication on expropriation of this case.

2. The plaintiffs' assertion

Since part of each land owned by the plaintiffs has decreased in the price of each remaining land of this case, as shown in the separate sheet in [Attachment 2] because it was incorporated into the project zone of this case, the defendant shall pay the plaintiffs the compensation for losses and the compensation for losses incurred thereby.

3. Determination

A. Claim for compensation for losses due to a decrease in the price of each remaining land of this case

1) Relevant legal principles

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 any other losses are incurred as a result of the acquisition or use of part of a group of land belonging to the same landowner, the project operator shall compensate for such losses.” In such cases, the losses to be compensated include not only the losses incurred as a result of the change in the price formation of the land conditions or access conditions due to the acquisition or use of part of the land, but also the losses incurred by the acquisition or use of the land, the form, structure, and use of the facilities installed as a result of the implementation of the acquisition or use of the land for the purpose of the acquisition or use, and the losses incurred by the use or the decline in the value of the land and exchange value due to the future availability or ease of transactions (see Supreme Court Decision 2010Du23149, Feb. 24, 2011).

In addition, Article 73 of the Land Compensation Act provides for the compensation for losses of the remaining land and provides for the reduction of the price of the remaining land in addition to the requirement of partial expropriation of a group of land belonging to the same owner. Thus, as long as it is recognized that the price of the remaining land has been reduced by partially accepting the land, unlike the claim for expropriation of the remaining land as provided in Article 74 of the same Act, there is no ground to deny the compensation for losses even in cases where it is not recognized that there is considerable difficulty in using the remaining land for its previous purpose (see Supreme Court Decision 200Du1362, Mar. 15, 2002)

2) Determination

In light of the following facts and circumstances acknowledged by comprehensively taking account of the results of a request for supplementary appraisal by the appraiser of the first instance trial for the Nonparty and the purport of the entire pleadings, it is reasonable to deem that the price of each remaining land of this case has decreased due to the project of this case. Thus, the Defendant is obligated to pay the Plaintiffs the amount corresponding to the amount indicated in the [Attachment 2] column as compensation for losses due to the price decrease in the remaining land of this case, unless there are special circumstances.

A) The remaining remaining areas of this case are at least 3.8m, and maximum 27m, from the boundary line of the railroad. However, according to Article 45 of the Railroad Safety Act and Article 46 of the Enforcement Decree of the same Act, in an area within 30m from the boundary line of the railroad, the Minister of Land, Infrastructure and Transport or Mayors/Do Governors should report certain acts to the Minister of Land, Infrastructure and Transport. As such, the price of the land subject to administrative restrictions on the use thereof is reduced compared

B) The height from each of the remaining lands of this case to the railroad is the minimum of 5.9m and maximum of 16.6m and the height of a bridge is 17m in the bridge section. It is anticipated that the environment of each of the remaining lands of this case will be changed, such as the occurrence of noise due to a railroad after the implementation of the project of this case, and other impacts on sunshine and view. Such change seems to serve as an unfavorable factor in the use or transaction of each of the remaining lands of this case.

C) On January 1, 2012, the appraiser of the first instance court selected land similar to each remaining land of this case as a comparative standard site and applied the officially announced land price as of January 1, 2012, which is the date of time revision, comparison of regional factors, comparison of individual factors, and correction of other factors, and calculated the price before and after incorporation into each remaining land of this case as of January 1, 201, the appraiser of the first instance court assessed that the price of each remaining land of this case was reduced as of January 2, 201 due to the project of this case as stated in the attached Table 2 [Attachment 2]. In calculating the difference of other conditions among the individual factors at the time of the said appraisal, the appraiser of the first instance court determined that the remaining land of this case was reduced as of January 2, 2012 as of January 1, 2012, and there is no other evidence to recognize that there was any error in the content of the material, material, or other factors.

B. Determination on the Defendant’s assertion of usefulness between compensation items

1) The defendant's assertion

The defendant asserts that the compensation amount for each of the instant land compensation items is excessive, and the compensation amount for each of the instant remaining land of this case is insufficient, so that it is necessary to determine the total amount of compensation by adding excessive and insufficient parts to the compensation amount.

2) Determination

A) Compensation due to the expropriation of land is not by the object of expropriation or use, but by the victim's individual. Thus, in cases where the amount of compensation for some of the objects of administrative litigation falls short of the amount of compensation for other items and the amount of compensation for other items is excessive, the total amount of compensation shall be determined by permitting the utilization between the items and the excessive amount of compensation (see Supreme Court Decisions 92Nu5331, Sept. 8, 1992; 96Nu12597, Jan. 20, 198; 96Nu12597, Nov. 20, 198, etc.). In order to allow the utilization of compensation items, administrative litigation shall be instituted against the compensation items (see Supreme Court Decision 2014Du1451, Nov. 13, 2014).

B) However, in the case of this case, the plaintiffs sought compensation for damages for each of the lands of this case and compensation for damages for each of the remaining lands of this case at the same time, and the purport of the claim of this case as of August 11, 2016 and the cause of the claim are reduced to seek compensation for damages for the decrease in the price of each of the remaining lands of this case, and the withdrawal or withdrawal of the claim for compensation for damages for each of the lands of this case is obvious

Therefore, in the lawsuit of this case, only the part of the claim for compensation for damages against each remaining land of this case is subject to examination, so it cannot be allowed to use each land of this case excluded from the subject of administrative litigation. The defendant's above assertion is without merit.

4. Conclusion

Therefore, with respect to the compensation for losses for each remaining land of this case, the defendant calculated at the rate of 17,273,30 won, 26,892,90 won to the plaintiff 2,375,300 won, which is the part cited by the first instance judgment, and the part cited by the plaintiff 1-2,375,300 among them, from February 12, 2014, which is the date following the date of expropriation commencement to February 19, 2016, which is deemed reasonable for the defendant to dispute about the existence and scope of the obligation to repay, 5% per annum under the Civil Act until October 19, 2016, and 15% per annum from the following day of the next day of the next day to the date of complete payment, to 30% per annum of the obligation to pay additional payment at the second 14,898,000 won, and 26,892,90% per annum from the second 15th day after the next day of the judgment.

Therefore, the plaintiffs' claims of this case are accepted within the above scope of recognition, and the remaining claims are dismissed without merit. However, since part of the part against the plaintiffs in the judgment of the court of first instance which partially different conclusions are unfair, the plaintiffs' appeal is partially accepted, and each part of the judgment of the court of first instance is revoked, and the defendant is ordered to pay the above amount. Since the remaining part of the judgment of the court of first instance is legitimate, the remaining part of the judgment of the court of first instance is justified, and thus, the remaining appeal by the plaintiffs is

[Attachment]

Judges Landscaping Co., Ltd. (Presiding Judge)