[1] The requirements for assessing the amount of compensation within the limit of 1/3 of the appraised value of neighboring land when acquiring land necessary for public works and the requirements for assessing the amount of compensation as stipulated in Article 26(1)2 of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (negative)

[2] Criteria to determine whether a “road built on its own for the convenience of its own land” under Article 26(2)1 of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor

[1] Article 70(2) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 26(2) and (4) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Articles 2 and 4 of the Private Road Act / [2] Article 26(2)1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] [2] Supreme Court Decision 2011Du7007 decided June 13, 2013 (Gong2013Ha, 1217)

Plaintiff (Law Firm Digital, Attorneys Choi Young-young et al., Counsel for the plaintiff-appellant)

E. E.S. (Attorney Jeong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu38369 decided September 13, 2013

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In order to acquire land necessary for public works and assess the amount of compensation within 1/3 of the appraised value of neighboring land, it shall be deemed as “the site of a private road” as prescribed by Article 26(1)2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule”), and the land shall have the substance corresponding to a private road under the Private Road Act by providing it for the general traffic connected to the general road under the Road Act, etc. Furthermore, it shall fall under any of Article 26(2)1 through 4 of the Enforcement Rule (see Supreme Court Decision 2011Du7007, Jun. 13, 201), and if the relevant land is connected to the road under the Road Act, it shall be deemed that it has the substance corresponding to the private road under the Private Road Act, barring any special circumstance, and it shall not necessarily be provided to an unspecified number of and unspecified persons.

Nevertheless, the court below acknowledged the fact that the land of this case is connected to the public road, but it is difficult to view the land of this case as having substance equivalent to a private road under the Private Road Act on the grounds that there is no evidence to deem that many unspecified general public passed through or allowed the Plaintiff to do so. The court below erred by misapprehending the legal principles on the interpretation of “the site of a de facto private road” as prescribed in the Enforcement Rule, thereby affecting the conclusion of the judgment. The ground of appeal

2. Regarding ground of appeal No. 2

In order to constitute “road constructed by a landowner at the time of road construction” under Article 26(2)1 of the Enforcement Rule, it shall be acknowledged that a landowner has objective grounds to deem that the entire land does not violate the principle of fair compensation even if he/she evaluates the value of the portion provided as a road site due to the increase in the convenience of the remaining portion of the land due to the increase in the value of the portion supplied as a road as a result of the construction of a part of his/her own land, such as the increase in the convenience of the part of the land due to the increase in the value of the part, etc.

According to the reasoning of the judgment below and the records, the Plaintiff constructed a building on the land in Seocho-gu Seoul Metropolitan Government ( Address 1 omitted) before its own partition, and completed the registration procedure for preservation of ownership on November 18, 2003. On June 10, 2004, the Plaintiff divided the above land into ( Address 1 omitted), land ( Address 2 omitted), land ( Address 2 omitted), and land category ( Address 1 omitted), which is the part of the above building site, from "B" to "road", and changed the land category from "B" to "road". The land category of the above land was changed from "B" to "Road". The above division ( Address 1 omitted) land was a blind land in the cadastral map. The Plaintiff constructed the instant land as a road to use it as a access road from ( Address 1 omitted), and it is reasonable to view that the land size of this case was against the land size of 37 square meters, and even if it did not go against the aforementioned legal principles, it did not constitute an objective compensation for the Plaintiff's land.

Nevertheless, the lower court, based on its reasoning, determined that the value of the instant land is difficult to be deemed to have increased due to the increase in the value of the land ( Address 1 omitted), and thus, deemed that the instant land does not constitute the site of the de facto private road. In so doing, the lower court erred by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below, including the judgment on the application for the return of provisional payment, is reversed (the application for the return of provisional payment is a kind of lawsuit pending in the lawsuit and its nature is a preliminary counterclaim. Thus, as long as the judgment of the court below is reversed for the above reasons as to the principal claim, the part which the court below dismissed the application for the return of provisional payment cannot be reversed as a matter of course) and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating

Justices Lee In-bok (Presiding Justice)