Cheongyang Wood Co., Ltd. (Law Firm Doo, et al., Counsel for the defendant-appellant)

Incheon Metropolitan City Urban Development Corporation (Government Law Firm Corporation, Attorneys Lee In-sea, Counsel for defendant-appellant)

Incheon District Court Decision 2009Guhap4245 Decided September 9, 2010

August 19, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 160,804,000 won with 5% per annum from October 27, 2009 to the service date of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of this Court concerning this case is that the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except for adding the judgment as described below 2.

2. Determination on addition

A. Although the defendant asserts that there was no fact that the plaintiff sought obstacles in addition to the business compensation, considering the overall purport of the pleadings as a result of the court's entrustment of appraisal by the court of first instance, the plaintiff is aware of the fact that the plaintiff changed the purport of the claim and the cause of the claim according to the result of the court's entrustment of appraisal by the court of first instance and sought the meaning of "expenses incurred in the transfer of business facilities, raw materials, etc. and the amount equivalent to losses incurred thereafter" (the meaning of obstacles compensation as mentioned above). Thus, the above argument by the defendant

B. The Defendant asserts that the Industrial Cluster Development and Factory Establishment Act requires a factory registration in cases where the factory construction area is at least 500 square meters, and that the relocation of a factory is prohibited in an overpopulated detention area, and that the Industrial Sites and Development Act requires permission from a Metropolitan City Mayor, etc. when installing structures and piling up goods in an industrial complex, and that Article 25 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) requires permission from the head of a Si/Gun/Gu, etc. in cases where the Defendant intends to install structures and add goods on the land publicly notified after a public announcement of the project is made. However, the Plaintiff did not have obtained permission, etc. under each of the above Acts and subordinate statutes, since it does not constitute a business subject to permission, etc. under Article 45 of the Enforcement Rule of the Public Works Act.

However, according to the fact-finding reply to the Seo-gu Incheon Metropolitan City Office of the court of the trial on whether the plaintiff's business was required to take procedures for permission, etc. under the relevant Acts and subordinate statutes after relocating the land (number 2 omitted), the plaintiff is only recognized as violating the relevant provisions, such as permission, etc. under the Clean Air Conservation Act and the Noise and Vibration Control Act. Such violation is only a permission incidental to business, and cannot be deemed as a permission to conduct the business. On the other hand, there is no circumstance to deem that the plaintiff's business was in violation of the relevant Acts and subordinate statutes as alleged by the defendant (number 2 omitted) in moving the land (number 2 omitted). There is no evidence to deem that the factory building of the land (number 2 omitted) is less than 500 square meters in size, and there is no container (number 6 x 3 meters), sloping room (2 x 8m), and 3m area (3 x 2m). However, such circumstance alone is insufficient to readily conclude that the entire place of business of this case is not a land change or any other object prohibited.

Even if the Plaintiff violated the relevant Acts and subordinate statutes as alleged by the Defendant, as seen earlier, the Plaintiff continued to move the business conducted on the land (number 1 omitted) while meeting the business compensation requirements, into the land (number 2 omitted) and maintained the identity of the business facilities, etc., as they are, (see, e.g., Supreme Court Decision 2009Da15388, Apr. 2, 201).

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Chang-chul (Presiding Justice)