[1] Requirements and criteria for exercising a redemptive right under Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] The meaning of "land price fluctuation rate of neighboring similar land" under Article 48 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and the method of selecting neighboring similar land to calculate the land price fluctuation rate

[1] Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 8665, Oct. 17, 2007) / [2] Article 48 of the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 24544, May 28, 2013)

[1] Supreme Court Decision 93Da51218 delivered on May 24, 1994 (Gong1994Ha, 1801) Supreme Court Decision 95Da24845 delivered on November 28, 1995 (Gong1996Sang, 169) Supreme Court Decision 97Da36835 delivered on November 11, 1997 (Gong1997Ha, 374) / [2] Supreme Court Decision 99Du3416 delivered on November 28, 200 (Gong201Sang, 173)

See Attached List of Plaintiffs (Attorney Park Jin-jin, Counsel for the plaintiff-appellant)

Plaintiff 8 (Attorney Son Ji-yol et al., Counsel for the plaintiff-appellant)

Eunpyeong-gu Seoul Metropolitan Government (Attorney Hong Ho-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na70687 decided July 4, 2013

All appeals are dismissed. The costs of appeal between Plaintiff 8 and Defendant are assessed against Plaintiff 8, and the remainder between the Plaintiffs and Defendant are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Plaintiff 8’s ground of appeal

A. As to the first ground for appeal

The allegation in the grounds of appeal on this part is with regard to the real estate No. 1 of this case owned by the plaintiff 8 and expropriated by the defendant, and the right of repurchase under Article 91 (1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter "Land Compensation Act"), but the period of limitation has expired because the defendant failed to notify the plaintiff of the occurrence of the right of repurchase, and thus the defendant is subject to the duty to notify the above plaintiff of the occurrence of the right of repurchase, so the defendant is obliged to compensate for damages due to the termination of the right of repurchase of the above plaintiff. However, the court below determined that the right of repurchase under Article 91 (1) of the Land Compensation Act did not have occurred, and did not examine the defendant's obligation to notify the right of repurchase and liability for damages

However, even if examining the record, Plaintiff 8 sought damages from the extinguishment of a repurchase right under Article 91(1) of the Land Compensation Act by notification of a repurchase right under Article 91(2) of the Land Compensation Act and selectively, it did not seek damages from the extinction of a repurchase right under Article 91(1) of the Land Compensation Act until the closing of argument in the lower trial. Thus, the above ground of appeal is first asserted in the final appeal, and thus cannot be seen as a legitimate assertion. In addition, as seen earlier, it cannot be deemed that a repurchase right under Article 91(1) of the Land Compensation Act has been established. Thus, the ground of appeal on this part cannot be accepted without further review.

B. Regarding ground of appeal No. 2

The lower court acknowledged the fact that the Eunpyeong-gu Seoul Metropolitan Government head of Eunpyeong-gu Seoul Metropolitan Government (hereinafter referred to as the “Yyeong-gu head of Eunpyeong-gu”) on October 25, 2000, based on the decision on and public notice of the installation of urban planning facilities (waste disposal facilities) in Seoul, including the real estate of this case, approved and publicly notified an implementation plan for an urban planning project (waste disposal facilities) to construct “Yyeong-gu underground exchange facilities” (hereinafter referred to as the “instant urban planning project”) on a scale of 11,959 square meters in Eunpyeong-gu, Seoul, including the real estate of this case, on October 25, 200, the lower court acknowledged the fact that the head of Eunpyeong-gu Seoul Metropolitan Government (hereinafter referred to as the “Seoul-gu head of Eunpyeong-gu”) was designated as the project executor, and that each of the real estate of this case was decided to expropriate on November 30, 2001 and completed ownership transfer registration on the ground of this on December 3, 2001.

Furthermore, according to the above facts, on November 30, 2006, when five years have elapsed from November 30, 2001, the repurchase right under Article 91(2) of the Land Compensation Act was created with respect to each of the instant real estate, and the Defendant, who is the project implementer of the instant waste disposal facility, had the duty to notify the Plaintiffs that the repurchase right had been created with respect to each of the instant real estate. However, the Defendant failed to perform its duty to notify, and the Plaintiffs failed to exercise the repurchase right with respect to each of the instant real estate. Accordingly, the Plaintiffs suffered losses due to the lapse of one year from the date of occurrence of the Plaintiffs’ repurchase right with respect to each of the instant real estate on November 30, 207, when one year has elapsed from the date of occurrence of the Plaintiffs’ repurchase right, and barring any special circumstance, the Defendant determined that Plaintiff 8 was liable for damages due to the Plaintiff’s exercise of the repurchase right under Article 91(2) of the Land Compensation Act, and thus, Defendant 15 of this case’s Land Compensation 107.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to proximate causal relation in tort as alleged in the grounds of appeal

2. As to the Defendant’s ground of appeal

A. As to the assertion regarding the repurchase right under Article 91(1) of the Land Compensation Act

1) According to the reasoning of the lower judgment, the lower court: (a) determined on February 25, 2004, based on the evidence that the instant land was not disposed of by the head of Eunpyeong-gu Seoul Metropolitan Government; (b) determined that the instant land was disposed of by the Defendant’s construction project for the installation of the instant land and the instant land for KRW 20,495,248 on the following grounds: (c) the Defendant’s installation of the instant land for KRW 1,00,00,00 for each of the instant land and the instant land for KRW 2,00,00,000, and that each of the instant land was disposed of on the instant land for KRW 2,000,00,000, and that each of the instant land was subject to the installation of the instant land for KRW 7,000,000,000, and that each of the instant land was subject to the installation of the instant land for KRW 1,57,000,00; and (c) determined that each of the instant land for installation of the instant land for 2.

2) Repurchase rights under the Land Compensation Act may be exercised when all or part of the acquired land, etc. becomes unnecessary due to the discontinuation, alteration, etc. of the relevant project. Here, the term "project in question" refers to a specific project which is an object of acquisition through consultation or expropriation, and the term "operation or alteration of the relevant project" means the commencement or alteration of such specific project, and the term "when the acquired land becomes unnecessary" means the case where the land, etc. acquired by the project operator according to the procedure prescribed in the Land Compensation Act becomes unnecessary for the relevant project due to the discontinuation, alteration, etc. of the project, which is the purpose of acquisition, within a given period, and whether the acquired land is unnecessary shall be determined reasonably according to objective circumstances in light of the purpose and contents of the relevant project in question, the details and scope of the acquisition, the relationship with the relevant land in question, and the purpose of use (see, e.g., Supreme Court Decisions 93Da51218, May 24, 1994; 206Da5415, Jan. 111, 207).

Upon examining the reasoning of the judgment below in light of the above legal principles and the records, when comprehensively considering the contents of the business installing the instant waste disposal facilities, the progress of the business, the relationship with the instant urban development project, the relationship with the Defendant and EP Corporation, and the contents of the decision substituting the above conciliation, etc., the business of installing the instant waste disposal facilities, which was the project implementer, maintained without abolition or modification due to the instant urban development project, and each of the instant real estate is the land to be used for the instant waste disposal facilities installation business as before the previous plan. Therefore, since each of the instant real estate was discontinued or modified, the instant waste disposal facilities installation business and the instant real estate was no longer necessary, it cannot be said that the repurchase right under Article 91(1) of the Land Compensation Act has been established. The court below is just in holding to the same purport, and contrary to the allegations in the grounds of appeal, there

The remaining grounds of appeal on this part are as follows: (a) the right of repurchase under Article 91(2) of the Land Compensation Act, as well as the right of repurchase under Article 91(1) of the same Act, also arise; and (b) the right of repurchase under Article 91(1) of the same Act, other than Plaintiff 8, (hereinafter “Buss Plaintiffs”) has ceased to exist as of November 30, 2007; (c) the period of limitation expires as of November 30, 201, not only by November 30, 2007, but also by the exclusion period; (d) therefore, there is no proximate causal relationship between Defendant’s failure to perform the duty of giving a right of repurchase under Article 91(2) and the loss of the rest of the Plaintiffs’ right of repurchase under Article 91(1) of the Land Compensation Act, so long as the right

B. As to the assertion related to the subject of the duty to notify the conversion of public works and the occurrence of repurchase rights

The allegation in the grounds of appeal in this part is as follows: (a) the instant waste disposal facility installation project was changed to any other public works stipulated in Article 92(1)1 through 4 of the Land Compensation Act as a result of the authorization and public notice of the implementation plan of the instant urban development project; and (b) the project implementer was also changed to EP construction rather than the Defendant; (c) thus, the repurchase right is restricted by the conversion of public works; and even if the repurchase right was created, the subject of the duty to notify the occurrence of the repurchase right is the changed EP construction, the changed project implementer; and (d) as long as the instant waste disposal facility installation project cannot be seen

C. As to the assertion regarding the selection of neighboring similar land

"The fluctuation rate of similar land adjacent to the former Enforcement Decree of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Presidential Decree No. 24544, May 28, 2013) refers to the fluctuation rate of similar land adjacent to the land to be redeemed and the geographically adjacent, and the fluctuation rate of the fluctuation rate of neighboring similar land similar to the neighboring land whose land category and use status are similar to those of the land on the public register. The neighboring similar land to calculate the fluctuation rate of the fluctuation rate has no change in the land category, use status, etc. on the public register from the time of acquisition by consultation or expropriation to the time of exercise of the right of repurchase, and there is no change in the land category, use status, etc. on the public register from the time of exercise of the right of repurchase, and there is no need to select a land to the extent that can calculate the reasonable fluctuation rate of land among the reference land price and

In light of the above legal principles and records, the judgment of the court below is just to determine that the land 86-2 in Gyeyang-gu, Youngyang-gu, the first instance court selected as the sample land for the appraisal of land fluctuation rate constituted the neighboring similar land of each of the instant real estate, and contrary to what is alleged in the grounds of appeal, there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Lee Ki-taik (Presiding Justice)