Whether the scheduled public road site constitutes a de facto private road under Article 26 (2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative).

Article 26(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule of the Act on Public Works Projects”) provides that “A road other than a private road under the Private Road Act, which is established by a landowner himself/herself for the convenience of his/her own land and a road for which it is impossible for the landowner to restrict another’s traffic by his/her own will,” and that a road is used as a road after the determination as a road by a Si/Gun management plan under the National Land Planning and Utilization Act is excluded from a private road in fact. As such, “A road is used as a current state due to the determination and public notice of a public project or an urban planning, but the land in question is being used as a current state but has not been actually implemented as a long-term undeveloped state of urban planning facilities”, namely, if a land is assessed based on a private road, it would result in excessive disadvantages to land owners on the basis of the present state of expropriation in cases where a road project is implemented immediately after the determination as a road management plan.”

Article 26 (2) 1 and 2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 2014Du6425 Decided September 4, 2014 (Gong2014Ha, 2057)

Plaintiff (Attorney Kim G-do et al., Counsel for plaintiff-appellant)

Han-gu Multi-1 District Housing Development and Improvement Project Association (Attorneys Hong Young-ju et al., Counsel for the plaintiff-appellant)

Gwangju High Court ( Jeonju) Decision 2017Nu1853 decided August 20, 2018

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

The grounds of appeal are examined.

1. Article 26(2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides, “A road other than a private road under the Private Road Act, which is established by a landowner himself/herself for the convenience of his/her own land and a road for which the landowner cannot restrict another’s passage by his/her own will,” and excludes de facto private roads used as a road after the determination as a road under a Si/Gun management plan under the National Land Planning and Utilization Act. Thus, it is reasonable to interpret Article 26(2)4 of the Enforcement Rule of the Public Works Act as follows: “A road, other than a private road under the Private Road Act, is used as a current state of public project or urban planning, but is provided as a long-term undeveloped state of urban planning facilities without the actual implementation of a public project, if the land is assessed based on the actual amount of compensation in the case of a planned site, it would be excessively unfavorable to landowners based on the current status of use before the expropriation.”

2. According to the reasoning of the lower judgment, the following circumstances are revealed.

A. On July 12, 1977, the instant land was designated and publicly notified as a site for a Class II road in the field of small-ro pursuant to Article 125 of the Public Notice of Jeollabuk-do.

B. The Nonparty, the former owner of the instant land, sold the neighboring land by dividing it between around 1983 and around 1986, was divided and remaining in the form of a funeral for the purpose of the road site in the center of the neighboring land, and began to be used as a passage route from around that time.

C. At around 1985, Jeonju-si: (a) occupied the instant land on the road packing and provided it for the passage of the general public; (b) did not acquire or use it in accordance with the procedure of expropriation, etc. under the law; (c) thereafter, the instant land was used as a passage of neighboring residents for over 30 years from the time of authorization of the instant management and disposition plan and was used as the only passage leading to the contribution; and (d) thus, (c) cannot pass through a road with a contribution using the instant

D. The instant land is widely used as a passage, the entire land is used as a passage, and its original shape has been changed by packaging it with asphalt or concrete, and it is difficult to view that it is easy to restore it to its original state in light of the degree of the alteration of the current state, the current use of surrounding land, etc.

E. The Defendant established a management and disposal plan including the content that the assessed value of the previous assets of the instant land is KRW 94,674,000 according to the appraisal and assessment result, which is calculated in consideration of the current status of the instant land as a road, and the former Mayor approved the management and disposal plan on December 21, 2015.

F. As of December 4, 2012, the date of public notice of authorization for project implementation of the instant project, when evaluating the current status of the instant land as the answer according to its land category, the value is 219,88,000 won.

3. Examining the above circumstances in light of the legal principles as seen earlier, it is reasonable to view that the instant land falls under the “pre-determined site” in Article 26(2) of the Enforcement Rule of the Land Compensation Act, even though it was determined and publicly announced as a planned road site under the urban/Gun management plan under the National Land Planning and Utilization Act, and constitutes “pre-determined site” being actually used as a road. Therefore, the lower court should have further determined the illegality of the instant management and disposal plan on such premise.

Nevertheless, the lower court determined otherwise, on the premise that the instant land owned by the Plaintiff constitutes a de facto private road under Article 26(2)2 of the Enforcement Rule of the Land Compensation Act. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of de facto private road, etc., thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)