[1] The legal nature of a lawsuit seeking the payment of compensation for losses or seeking confirmation of a claim for compensation for losses by a landowner incorporated into a river under the Act on Special Measures for the Compensation for Land incorporated into a river area (=Party litigation under Article 3 subparagraph 2 of the Administrative Litigation Act

[2] In a party suit under the Administrative Litigation Act, where the designation of the defendant is erroneous, whether the court may immediately dismiss the suit without correcting the defendant by exercising the right of explanation (negative)

[3] Where the Plaintiff filed a lawsuit against the State seeking confirmation of the claim for compensation for losses based on the claim by a land owner incorporated into a river area under the Act on Special Measures for the Compensation for Land incorporated into a River Area, the case reversing the judgment below which dismissed the lawsuit on the ground that the Plaintiff did not rectify the Defendant to the relevant Metropolitan City and did not have any interest in confirmation due to the mistake

[1] Article 2 of the Act on Special Measures for the Compensation for Land incorporated into River Areas, Article 2 of the Addenda to the Act on Special Measures for the Compensation for Land incorporated into River Areas, Article 3 subparagraph 2 of the Administrative Litigation Act / [2] Articles 14 and 44 (1) of the Administrative Litigation Act, Article 136 of the Civil Procedure Act / [3] Articles 1 and 2 of the Act on Special Measures for the Compensation for Land incorporated into River Areas, Articles 14 and 44 (1) of the Administrative Litigation Act, Article 136 of the Civil Procedure Act

[1] Supreme Court en banc Decision 2004Da6207 Decided May 18, 2006 (Gong2006Sang, 1041) / [2] Supreme Court Decision 85Nu621 Decided November 12, 1985 (Gong1986, 64) Supreme Court Decision 2002Du7852 Decided July 8, 2004 (Gong2004Ha, 1357)

Plaintiff (Attorney Kim Jong-tae, Counsel for plaintiff-appellant)

Korea

Daejeon High Court Decision 2005Na839 Decided March 30, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The Act on Special Measures for the Compensation for Land incorporated into River Areas (amended by Act No. 6772 of Dec. 11, 2002, hereinafter "the amended Act") provides that the Mayor/Do Governor shall compensate for the losses of the land for which the claim for compensation has not been extinguished due to the expiration of the extinctive prescription under Article 2 of the Addenda of the amended Act (Act No. 3782, hereinafter "the amended River Act") among cases falling under any subparagraph of Article 2. Since the legal nature of the above claim for compensation is clear that it is a right under public law, the legal nature of the claim for compensation is a right under public law, not a civil litigation. The above claim for compensation is naturally arising from the case of the land located within the river area under Article 2 of the amended Act, and it is not from the decision of the management agency to pay compensation. Thus, the lawsuit seeking the payment of compensation or seeking the confirmation of the claim for compensation shall be based on the party litigation under Article 3 subparagraph 2 of the Administrative Litigation Act (see, e.g., Supreme Court en banc Decision 20065Da674.

On the other hand, in a party suit prescribed in the Administrative Litigation Act, where the plaintiff has mistakenly designated the defendant, the court may, upon the plaintiff's request, permit the correction of the defendant (Article 44 (1) and Article 14 of the Administrative Litigation Act). In the case where the plaintiff seems to have mistakenly designated the defendant, the court shall exercise the right of explanation and have the plaintiff correct the defendant, and have the plaintiff proceed the lawsuit to correct the defendant, and the court shall not dismiss the lawsuit immediately on the ground that the designation of the defendant was erroneous without taking such measures (see Supreme Court Decisions 85Nu621, Nov. 12, 1985; 2002Du7852, Jul. 8, 2004, etc.).

According to the records and relevant Acts and subordinate statutes, Article 2 of the Act on Special Cases Concerning the Aggravated Punishment, unlike Article 2 of the Addenda to the Act on Special Cases Concerning the Aggravated Punishment, stipulates a person liable for compensation as a Mayor/Do Governor, who is not a management agency, so in this case seeking confirmation of the claim for compensation based on Article 2 of the Act on Special Cases Concerning the Aggravated Punishment, the plaintiff should have been the defendant of the Daejeon Metropolitan City in spite of the fact that the plaintiff filed a lawsuit against the Republic of Korea, who is not a person liable for compensation. In light of the above legal principles, the claim for compensation for the plaintiff's confirmation should be based on the public law as a right in the lawsuit under the Administrative Litigation Act and the litigation procedure can be followed by the defendant's correction without the defendant's consent, unlike the civil lawsuit, and if the plaintiff has mistakenly designated the defendant, the

Nevertheless, the court below rejected the lawsuit of this case solely on the ground that there is no benefit in confirmation due to a mistake in the designation of the defendant without taking such a measure as above. In so doing, the court below erred by misapprehending the legal principles on the legal nature of the claim for compensation for losses under Article 2 of the amended Act, the procedure thereof, and the correction of the defendant under the Administrative Litigation Act.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)