2011Guhap298 Compensation, etc. for losses

Park A

Law Firm Jae-ju, Attorney Kim Hong-chul, Counsel for defendant-appellant

Korea

Representative of Law and Minister of Justice D

Litigation Performers leap1

August 25, 2011

September 22, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 128,194,966 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

(a) Approval and public notification of the project;

- ☆ 사업(이하 '이 사건 사업'이라 한다)

- Notice No. 2009-530 of the Busan Regional Land Management Office on November 30, 2009

- Project implementer: Defendant (public notice is given to the Busan Regional Land Management Office)

(b) Installation of obstacles;

On July 2009, while the Plaintiff was putting farming houses in Han River 00 (hereinafter referred to as "the river site of this case"), the Plaintiff installed a vinyl house as aggregate (hereinafter referred to as "the obstacles of this case") and was in depth of sprinking.

C. On May 2009, the Plaintiff, etc., the river management agency, installed a notice of prohibition of illegal cultivation and installation of new plastic houses and a banner, and on June 22, 2009, a notice of prohibition of installation of a new plastic house was sent to the Plaintiff, etc., and on September 23, 2009 and October 2, 2009, a letter of guidance was sent to voluntarily remove and restore the illegally buried land to its original state on the illegal land.

In addition, on July 22, 2009, residents' briefing sessions were held for farmers in the river site on the incorporation of the four major river project into the four major river project, and crackdowns on illegal activities in the river site.

D. Decision on acceptance of the actual value of November 19, 2010

1) On September 30, 2009, the Plaintiff excluded the instant obstacles installed on the instant river site owned by the Defendant on September 30, 2009, from the compensation plan on the ground that they were illegal stolen goods, and the Plaintiff demanded compensation of the instant obstacles, and filed an application for adjudication on the same.

2) On November 19, 2010, the actual substance of the River Act is “A person who intends to occupy and use land and river facilities within a river area shall obtain permission from the river management agency. A person who occupies and uses a river pursuant to Article 48 shall restore the river to its original state when the permission is invalidated, occupation or use is discontinued. A river management agency may order a person who illegally occupies and uses a river without permission to occupy and use the river in accordance with Article 69 to remove the relevant structure or object. However, the Plaintiff’s application for adjudication on expropriation was dismissed on the ground that the obstacles in this case are illegal and are not subject to compensation for voluntary removal.”

[Reasons for Recognition] Each entry of Gap 1, 2, Eul 1 through 6 (including each number), and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

1) On May 2007, the Plaintiff acquired the instant river site in KRW 13,000 per square day from Nonparty Yellow C, and completed the installation of a vinyl, which is an obstacle to the instant case, around July 2009, and the said river site was also granted permission to occupy and use a river until around 2013.

2) The construction of obstacles in this case was completed before November 30, 2009, which is the public announcement date of the project approval, and the River Act and the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “the Act”) do not include unauthorized obstacles to the object of compensation. The obstacles in this case are subject to compensation if a building is constructed before the public announcement of the project approval regardless of whether the building permission was constructed by lawful construction permission. Even according to the authoritative interpretation of the administration, the corrective measures should be compensated by respecting the present state as long as the state is not corrected, even if the building is reclaimed without permission under the related Acts on the land of river water and other state-owned land.

3) In addition, since there are cases where the Defendant made compensation for obstacles without permission for the installation of obstacles and without permission for the voluntary removal, obstacles installed in excess of the permitted area for the occupancy and use of rivers, obstacles to the disposal of voluntary removal without permission for the occupancy and use of the river, and obstacles to the disposal of voluntary removal without permission for the occupancy and use of the river, the exclusion of the Plaintiff’s compensation is contrary

4) Therefore, the Defendant is liable to pay to the Plaintiff the amount of KRW 128,194,966, the average appraisal value of the instant obstacles, and delay damages therefor.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination consortiums and project approvals under the Land Expropriation Act are subject to compensation regardless of whether a building, which is an obstacle to the land located in a public project site, was normally granted permission (see, e.g., Supreme Court Decision 9Du10896, Mar. 10, 200). In the case of an illegal building, other than a residential building, a specific and individual determination shall be made by taking into account the legislative intent of the relevant statutes and the possibility of criticism and illegality of acts violating the relevant statutes, the possibility of being legalized, the possibility of being legalized, and whether the trade object is the trade object under social norms, and as a result, if the degree of illegality is large and objectively, to the extent that it is not acceptable under the relevant statutes or the possibility of being objectively legalized, it shall not be subject to compensation for expropriation (see, e.g., Supreme Court Decision 200Du6411, Apr. 13, 2001).

In addition, according to the River Act, the purpose of this Act is to prescribe matters concerning the designation, management, use, conservation, etc. of rivers to promote the proper management of rivers and contribute to the promotion of public welfare by providing for matters concerning the designation, management, use, conservation, etc. of rivers in order to promote the benefits of river use, to maintain a nature-friendly maintenance and preserve rivers, and to prevent damage caused by flowing water of rivers (Article 1), and any person who intends to engage in a certain act within a river area shall obtain permission from the management agency of rivers (Article 33(1)), the river management agency shall revoke or change permission or approval granted under this Act, suspend its validity, suspend works or other acts, order a disposition to reconstruct, alter, relocate or remove structures or things, or take other necessary measures pursuant to Article 33 of the River Act (Article 69).

A person who occupies or uses a river shall restore the river to its original state when the permission becomes void or when the occupation or use is discontinued (Article 48(1)).

2) We examine the instant case in accordance with the aforementioned legal doctrine and the River Act.

A) The following circumstances are acknowledged as to whether the instant river site is the object of compensation or not. The Plaintiff purchased the instant river site from Yellow C, but there is no evidence to acknowledge it, and even if the Plaintiff purchased it as alleged by the Plaintiff, the instant river site cannot be deemed as the object of sale. The Plaintiff’s establishment of a plastic house, an obstacle to the instant river site without permission to occupy and use the river site from the head of the river management agency, and there is no evidence to acknowledge it. However, according to the evidence No. 10-1 and No. 2, the Plaintiff’s permission to occupy and use the instant river site can be found to be C8, and the Plaintiff may not be deemed to have obtained permission to occupy and use the said river site to the extent that it could not interfere with the Plaintiff’s new installation of the instant river site at the expense of 90-1 and No. 2 in light of social norms, and thus, it cannot be deemed that there was little possibility that the Plaintiff would have been no possibility to receive any removal of the instant river site at its own expense.

Therefore, the defendant cannot be held liable to compensate the plaintiff pursuant to Article 78 of the River Act and Article 75 of the Public Works Act on the ground that the obstacles of this case, which should be restored to the plaintiff's expense, are expropriated or used as the project of this case. Thus, the plaintiff's assertion about the amount of compensation on the premise of this cannot be further examined.

B) In addition, the Plaintiff asserts to the effect that the Plaintiff’s exclusion from compensation for obstacles is inconsistent with the reasons and is inconsistent with the principle of equity, as there are cases where the Plaintiff made compensation for obstacles without permission for the installation of obstacles, obstacles installed in excess of the area permitted to occupy and use a river, obstacles installed in order to voluntarily remove obstacles without permission for the occupation and use of a river.

(1) 살피건대, 갑 제8, 9, 11, 12호증(각 가지번호 포함)의 각 기재에 의하면, 관할 ☆ 사업부지 내에 있는 하천부지 사용자인 이C2, 김C3, 박C4, 박C5, 김C6, 김C3, 김C7, 최C8, 최C9, 최C10이 지장물 설치허가를 받지 아니하고 설치한 지장물(비닐 하우스)에 대하여 장으로부터 2009. 9. 23., 2009. 10. 9. 2차례의 자진철거의 계고처분을 받고도 이를 이행하지 않았음에도 피고로부터 지장물 보상을 받은 사실, 그 중 박C4은 하천점용허가를 받은 면적이 9,900㎡ 임에도 12,985m²의 지장물에 대하여 보상을 받은 사실, 김C3은 하천점용허가를 받은 면적이 8,603㎡ 이지만, 김해시 한림면 ★리 00 에 대하여 하천점용허가를 받지 아니하였고, 그 위에 설치한 비닐하우스 약 2,970㎡에 대하여 장이 자진철거 계고처분을 하였음에도 그 중 91㎡에 대하여 보상받은 사실은 인정되나, 갑 13호증, 14호증의 1, 2의 각 기재에 의하면 장이 국민권익 위원회의 권고사항을 수용하여 2009. 6. 22. 이전에 설치한 지장물에 대하여 허가면적 만큼(보상받은 지장물 면적포함) 보상하기로 하였고, 이에 따라 이C2과 김E, 최C9은 하전점용허가를 받은 면적의 범위 내에서만 지장물 보상을 받은 사실, 김C3의 경우도 허가받은 8,603m의 범위에서만 지장물 보상을 받은 사실을 인정할 수 있다.

(2) In light of the following circumstances found based on the above facts and basic facts, i.e., acceptance of recommendations from the Anti-Corruption and Civil Rights Commission, and, on June 22, 2009, the said case intended to compensate within the scope of the area of permission for occupancy and use of rivers for the obstacles installed before sending a guide letter prohibiting the establishment of a new vinyl house on June 22, 2009, other than c4 persons receive compensation only within the scope of the permitted area, and Kim C3 received compensation for obstacles only within the scope of the permitted area, the permission for occupancy and use of rivers cannot be deemed as identical to the Plaintiff’s case where the permission for occupancy and use of rivers was not granted from the beginning. Thus, the exclusion of the Plaintiff’s obstacles from

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Provisions of the presiding judge;

Judges Kim Jae-deok

Judges Jong-jin