Whether a project operator's announcement of a compensation plan under Article 15 (1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects is subject to compensation in cases where a project operator's implementation of public works and the scope of the land subject to compensation is objectively determined and installs obstacles to the relevant land (negative with qualification)

Article 2 Subparag. 5, Article 25(2) and (3), and Article 61 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201);

Plaintiff (Law Firmcheon, Attorneys Lee In-soo et al., Counsel for plaintiff-appellant)

Republic of Korea (Law Firm Na, Attorneys Woo-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2011Nu29986 decided August 31, 2012

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the defendant's second ground for appeal

Article 61 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 11017, Aug. 4, 201; hereinafter “former Public Works Act”) provides that “any landowner or person concerned shall compensate for any loss incurred by the acquisition or use of land, etc. necessary for public works shall be made by the project operator.” Article 25(2) provides that “any person who intends to construct or substantial repair of a building, install structures, or add or increase goods on the land publicly notified after a public announcement of project approval has been made shall obtain permission from the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu. In this case, the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu shall first hear the opinion of the project operator in advance; and Article 61(3) provides that “any landowner or person concerned shall restore the existing building, structure or goods in violation of the provisions of paragraph (2) to the original state and may not claim compensation for any loss incurred by the owner or person concerned.”

In light of the contents of the above provisions concerning the preservation of land, etc. under the former Public Works Act after the public project approval is granted, the obstacles, such as structures, etc. installed on the land in the zone where the public project is performed, in principle, prior to the public project approval, shall be deemed compensation for losses. However, in light of the fact that the compensation for losses is compensation for special sacrifice incurred to private persons due to administrative action due to public necessity, in cases where a project operator’s announcement of compensation plan under Article 15(1) of the former Public Works Act has objectively determined the scope of land subject to compensation, etc. and installs obstacles to the relevant land after the objective determination of the details of the relevant public project, the use status of the relevant land, such as the nature and scale of the relevant land, and the type, use purpose, scale, and timing of the relevant construction, etc. of the relevant obstacles, if it is evident that such obstacles are not related to the ordinary

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the plaintiff newly established 23 greenhouses, 123 city houses, etc. on each land of this case from August of the same year to November of the same year (hereinafter “the instant vinyls, etc.”). The approval of the project of this case was announced on January 12, 2010, 79 city houses, and 475 city houses were installed for several hundred and seventy-six years, and the petition Gun publicly announced the compensation plan on each land of this case, including each land of this case, with respect to the implementation of public works of this case on July 20, 2009. In light of the aforementioned legal principles, it is evident that the Plaintiff had newly established the vinyl houses, etc. for the purpose of the public works of this case and the public works of this case from August of the same year to November of the same year, and the project approval of the instant public works of this case was officially announced on January 12, 2010.

However, even if the vinyl, etc. was installed for the purpose of receiving compensation for losses, the lower court determined that it cannot be deemed as not subject to compensation as long as it was installed before the project approval of the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on the subject of compensation for losses under the former Public Works Act, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal

2. As to the Plaintiff’s ground of appeal

Since the instant vinyl, etc. established by the Plaintiff only for the purpose of compensating for losses following the public announcement of the instant indemnity plan cannot be subject to the compensation for losses arising from the acquisition or use of land, etc. necessary for the instant public works, the Plaintiff’s ground of appeal disputing that the assessment of the appraised value of the instant vinyl, etc. was erroneous on a different premise is without merit.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kim Yong-deok (Presiding Justice)