Cases Real Estate Trust Co., Ltd. (Law Firm International et al., Counsel for the defendant-appellant)

Busan Urban Corporation (Law Firm Cheongeng et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2008Guhap2003 Decided May 28, 2010

November 30, 2012

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the order of additional payment shall be revoked.

The defendant shall pay to the plaintiff 217,678,087 won with 5% interest per annum from April 8, 2008 to December 21, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the appeal costs, 95% is borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 26,017,759,750 won with 20% interest per annum from April 8, 2008 to the day of full payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the order to pay additional amounts under the following subparagraphs shall be revoked. The defendant shall pay to the plaintiff 18,618,576,715 won with 5% per annum from April 8, 2008 to the rendering of a final judgment, and 20% per annum from the next day to the date of full payment.

1. Details of ruling;

(a) Approval and public notification of the project;

- Urban development projects [the urban development projects of the marine transportation large tourist resort (hot spring center), hereinafter referred to as the “instant public works projects];

- Notice No. 2006-414 of Busan Metropolitan City on November 29, 2006

- Project operator: Defendant

B. Adjudication on expropriation on February 25, 2008 by the Busan Metropolitan City Regional Land Expropriation Committee

- Persons subject to expropriation: Busan Metropolitan City Transportation Daegu (number 1 omitted), 6,295 square meters (hereinafter “instant land”) owned by the Plaintiff, and objects adjacent to the ground.

- Commencement date of expropriation: April 7, 2008

- Expropriation compensation: 19,185,586,250 won for the land of this case, and 12,747,200 won for the above-mentioned obstacles

- Appraisal Corporation: the Pacific Appraisal Corporation and the National Appraisal Corporation (the result of the appraisal is referred to as the “the result of the instant appraisal”);

C. Deposit of the defendant's compensation for expropriation

With respect to the land of this case, KRW 19,243,50,250, and KRW 13,294,430

[Ground for recognition] Unsatisfy

3. Plaintiff’s assertion and judgment thereon

A. The plaintiff's assertion

The comparative standard land for calculating compensation for the instant land is the most appropriate land size of 3,564 square meters (number 2 omitted) in the Jung-gu, Busan Metropolitan City (hereinafter “1 parcel number 1”). Of Busan Metropolitan City, the Dong-dong (number 3 omitted) and 423 square meters (hereinafter “2 land”) in Busan Metropolitan City cannot be the comparative standard land for calculating compensation for the instant land. Therefore, the result of the instant judgment, which is set as non-standard land for calculating compensation for the instant land, was erroneous in the selection of comparative standard land.

In addition, when comparing the land of this case with the land of this case as a comparative standard, the remaining conditions or factors of the individual factors, excluding the administrative conditions, are reasonable by Nonparty 2’s appraisal opinion (a.90, 1.04 of access conditions, 1.03 of environmental conditions, 1.00 of caught land conditions, 2.512 of other factors). The administrative conditions are reasonable by the appraisal opinion of Nonparty 3 and Nonparty 1 of the first instance trial (the Nonparty of the judgment of the Supreme Court) that presented 1.012 (the party appraiser Nonparty 2 of the first instance trial) (the administrative conditions are 0.70 of the land of this case, but the land of this case is far more than the land of this case in light of the fact that the land of this case conflicts with the urban planning facilities, rather, the land of this case should be deemed to be superior).

In addition, the compensation for the expropriation of the instant land is too low compared to that of the neighboring Jung-dong (number 4 omitted), Jung-dong (number 5 omitted), Jung-dong (number 6 omitted), Jung-dong (number 6 omitted), Jung-dong (number 7 omitted), and Jung-dong (number 8 omitted).

Ultimately, the legitimate compensation for expropriation of the instant land shall be KRW 37,862,076,965 [6,295 square meters x 6,014,627 won [2,40,000 won officially announced as non-standard school land price x 1.023 x the rate of land price fluctuation x 1.00 x the rate of regional factors gap x 1.00 x 0.975 x the rate of individual factors gap x 0.975 x 1.03 of environmental conditions x 1.000 x administrative conditions 1.00 x 1.012 x 2.512 x 19,243,50,250 x 250 x 18,618,576,715 x the damages for delay deposited by the Defendant from the aforementioned legitimate compensation to the Plaintiff].

(b) Fact of recognition;

1) Current status of the instant land

(a)the location and surrounding environment;

The land in this case is adjoining to the west of Korea Condo (currently removed) located in Jung-dong (number 2 omitted), and there are various commercial facilities with the end of the east of the sea side of the shipping beach, the main commercial facilities whose main business district is to find the shipping beach to the west, and the residential apartment, housing and commercial facilities to the north, and the east along the east road, respectively.

b)road and traffic conditions;

The land in this case is not adjacent to the exclusive pedestrians' roads installed at the end of the sea side of the shipping beach. However, there is a bus stop in the vicinity of the land in this case, and the traffic situation in the subway station is infinite in the base of the subway station.

C) the shape, location, and status of use;

The land in this case is flatd with an irregular land similar to a bridge, the ground is common, and the horizontal length is up to 80 meters when viewed from the shipping beach.

D) Land use plan, etc.

The instant land constitutes a general commercial area, fire prevention zone, central aesthetic district, Class 1 district unit planning zone, etc., and according to the “Guidelines for the Implementation of the District Unit Planning around the Shipping Bathing Beaching Beaching Zone”, the instant land is jointly developed with the neighboring parcel by the land unit planning.

2) The current status, etc. of use of adjacent comparative standard sheets with the instant land

There are land that can be a comparative standard for calculating compensation for the land of this case, and there are land Nos. 1 and 2. The current use status, surrounding environment, shape, etc. of the land of this case and the land of this case are as shown below.

Land 4,564 〃 1 land 〃 3,564 〃 3,564 〃 4,400 〃 2,400 〃 2,423 〃 423 〃 423 〃 423 〃 423 〃 450,000 〃 450,000 on the land in general commercial, but in the vicinity of the area of land category and land use and road traffic shape around the surrounding the area of land use in the main sentence.

3) The result of the appraisal commission for the appraisal of the instant land

1. 2. 1. 2. 2. 2. 1. 2. 4 m. 2. 1 m. 2. 4 m. 1. 2. 0 m. 1. 2. 0 m. 1. 1. 3 m. 1. 2. 0 m. 4 m. 1. 2. 1. 8 m. 1. 2. 1. 0. 1. 1. 3 m. 4 m. 1. 2. 1. 8 m. 2. 1. 1. 8 m. 4 m. 2. 1. 10 m. 1. 96 0. 90 m. 0. 1. 1. 1. 1. 05 m. 2. 1. 1. 1. 1. 1. 04 m. 1. 1. 1. 05 m. 1. 30. 1. 1. 1. 1. 1. 1. 8

In addition to the appraisal result of the judgment of this case, each entrustment of appraisal to Non-party 3, Non-party 1, and Non-party 2 of the court of first instance as well as the appraisal result of the judgment of this case. The summary of the appraisal is as follows.

4) Sale and purchase of the instant land between the Korea Land Corporation and the Postal Construction Corporation.

On March 23, 2006, the Korea Land and Housing Corporation (former Korea Land and Housing Corporation) divided the land of this case into 6,544 square meters (number 14 omitted) and 6,544 square meters (number 14 omitted) of Jungdong (number 14 omitted) into 6,501 square meters and 43 square meters of Jungdong (number 15 omitted) and then divided the land of this case into 6,501 square meters into 16,238,943,00 (number 17 omitted) and 218 square meters of Dong (number 16,238,943,00 (number 10,000 square meters until March 23, 201) and the registration of ownership transfer was made at the same time by the Plaintiff Company due to the sale of the land of this case and the registration of ownership transfer made at the same time due to the trust agreement of this case.

On the other hand, the contract (Evidence B or 7) prepared at the time of the conclusion of the above contract is stipulated as a special agreement, which states that the company should jointly develop with neighboring land, as the land of this case belongs to the Class-I district unit planning zone, etc. subject to the sale.

[Ground of recognition] Facts without dispute; Gap evidence 13-1, 2, Eul-7; each entry; the appraiser non-party 3, 1, and 4 of the court of first instance; the result of the commission of appraisal by the court of first instance to non-party 2; the result of on-site inspection by this court; the purport of the whole pleadings

C. Determination

1) As to the selection of comparative standard land

In light of the impact of land subject to expropriation on the price formation of land in an urban planning zone, it is reasonable to select specific use area as the reference land applicable to the same land, barring any other special circumstances where there exist the reference land in the same specific use area as the land in question. Where there are multiple reference land such as the land in question and specific use area, one of the reference land shall be selected by comprehensively taking into account the above reference land and the situation of use of the land in question, surrounding environment, etc. In addition, somewhat different points between the reference land and the land in question should be taken into account in water boom, such as analysis of regional factors or individual factors (see, e.g., Supreme Court Decision 2006Du11507, Jul.

According to the above facts, both the first and second lands are the site belonging to a general commercial area, and the specific use area and the land category are identical to the land of this case, and the shape and land are similar to the irregular plane. However, while the first land is the surrounding environment of this case, the use status of the second land is the same as the land of this case, while the second land is somewhat different from the land of this case, it seems that the use status of the first and second land is the same as the land of this case.

Therefore, all land of this case can be a comparative standard for the land of this case. Thus, it is reasonable to view that there is no error in the selection of a comparative standard for each appraisal result in the first instance or the first instance court which selected the land of this case as a comparative standard for the land of this case, as well as the result of each appraisal in the first instance or the first instance court which selected the land of this case as a comparative standard for the land of this case which is selected as a comparative standard for the land of this case.

However, rather than the land 2, the land 1 is similar to the land 1 in the area or road traffic, etc., and the separation distance from the land 1 in this case is also close, and the comparison standard of the land 1 in this case seems to be more appropriate than the land 2 in this case.

2) Adoption of Nonparty 1’s appraisal opinion

A) In a lawsuit concerning the increase or decrease of land expropriation compensation, in case where each appraisal and each court appraiser, which form the basis of the adjudication on expropriation, have no illegality in the method of appraisal, and there is no reason to believe that there is a difference in the result of appraisal due to a somewhat different relation between the appraisal, although there is no evidence to prove that there is an error in the content of the appraisal, reliance on any one of the appraisal should belong to the court’s discretion (see Supreme Court Decision 2008Du2129, Mar. 26, 2009, etc.).

B) Based on the above legal principles, the court of first instance with respect to the appraiser non-party 3 and 4 (the first appraisal) of the court of first instance, and with respect to the non-party 2 of the court of first instance with respect to the commission of appraisal by the court of first instance with respect to the land appraisal method as follows. The court of first instance selected the second land as a comparative standard and assessed the compensation for the expropriation of the land of this case as a comparative standard, and the result of the appraisal by the court of first instance with respect to the non-party 1 selected and assessed the first land as a comparative standard rather than the result of the second entrustment by the court of first instance with respect to the non-party 4, it seems more reasonable to accept the appraisal opinion by the non-party 1.

However, the above appraiser evaluated the expropriation compensation of the land in this case with the rate of 1.35 different factors gap, but based on the result of the appraisal commission of the appraiser in this case, the above difference rate is less than 1.358 if it is calculated to the third place below the decimal point by rounded off the above difference from the decimal point to the third place below the decimal point, and 1.358 is applied to the calculation of the reasonable compensation as seen later.

(1) In the case of Nonparty 3’s entrustment of appraisal

According to Article 15-2 (1) of the "Land Compensation Guidelines" (No. 14 evidence No. 15-2 (1) of the "Land Compensation Evaluation Guidelines" (No. 14) which is usually applicable to the appraisal of land compensation, the difference in individual factors shall be calculated by multiplying the gap in each "requirements" unit, such as street conditions, and the difference in each "requirements" unit shall be calculated by adding the gap rate in the item, tax item, and heat in the relevant "Conditions" unit to the difference in the item, tax item, and the above appraiser calculated the difference in individual factors by multiplying the difference in the unit in each item within the conditions.

In addition, in the appraisal of land compensation, the normal market price of the case where neighboring similar land was transacted or the case where compensation has been paid may be considered, and the compensation example does not need to be prior to the recognition of the public works (see Supreme Court Decision 92Nu19521, Jun. 22, 1993). The normal market price of neighboring similar land which may be considered refers to the price where development gains are not included (see the above judgment). The compensation example selected by the appraiser is the price at which the development gains are not included (see the above judgment). The compensation example is that the time of the price is October 31, 2008, and the public works which caused the compensation are also the expansion of the area of the public works in this case, that is, the above compensation price includes the development gains from the public works in this case. Thus, the compensation example can not be considered in the appraisal of the land in this case.

(2) In the case of Nonparty 4’s primary entrustment of appraisal

According to the statement of Gap evidence 24 and the result of the above appraisal commission, 21 square meters in aggregate, including the land No. 1,155 square meters in lots, were used as the land, parking lots, roads, etc. of the above 21 square meters in Korea (at present, the current state is the state of removal). Among them, the above appraiser is designated as a non-standard land of 3,564 square meters in size. Nevertheless, it is recognized that the above appraiser considered the whole 7,155 square meters in comparison with the above 7,155 square meters in the land and appraised the compensation for the expropriation of the land of this case. Thus

(3) In the case of Nonparty 2’s entrustment of appraisal

As seen above, the normal market price of neighboring similar land which can be considered in the appraisal of land expropriation refers to the price that does not include development gains. According to the above recognition, the compensation preference or transaction preference selected by the appraiser since January 8, 2008 is the same as the time of the price. In light of the fact that most of the public works that are the cause of compensation is the expansion of the area of the public works in this case, that is, the development gains from the public works in this case are included in the above compensation price and transaction price, and thus, it cannot be considered as the compensation preference or transaction preference that can be considered in the assessment of the land expropriation compensation in this case.

C) (1) In light of other factors, the Plaintiff should seek the difference between the individual factors of the standard land compared to the land to be appraised at the time of comparison and the officially announced price at the time of comparison with the land price at the time of comparison based on the compensation precedents. However, Nonparty 1’s request for appraisal by appraiser Nonparty 1 sought a difference in the individual factors between the land to be appraised and the land at the time of comparison with the land at the time of comparison with the land at the time of compensation precedents, and applied the difference rate between the price of the instant land (i.e., the land price compared to the land to be appraised), which applied the difference in the above difference in the price of the instant land, based on the officially announced price of the standard land (i.e. the land price in this case, the land price in this case, compared with the land to the land to be appraised) and the price of the instant land to

In light of the purport of the fact finding as to the president of the Korea Appraisal Association of the trial court, the method of calculating the gap in consideration of the examples of compensation does not have a generalized standard under the statutes or the above “Land Compensation Evaluation Guidelines” as to the method of calculating the difference in the method of calculating the amount of compensation, and Nonparty 1 is recognized as having calculated by dividing the value of the instant land by the price (the amount shall be the amount of compensation per square meter of the land subject to compensation precedents, and the amount calculated by multiplying the difference in individual factors compared with the instant land by the difference in the amount of compensation precedents, etc. compared with the instant land) calculated based on the method of calculating the amount of compensation in the current appraisal industry according to the method of calculating the amount of compensation most generally used in the appraisal industry. In comparison, it is recognized that Nonparty 1 calculated by the price of the instant land (the amount calculated by multiplying the calculated amount of

In light of the above facts and the fact that the calculation method used by the above appraiser widely used in the appraisal industry reflects the gap between the market price and the officially announced land price, the calculation method of the gap used by the above appraiser cannot be deemed unlawful. Thus, the plaintiff's above assertion is without merit.

(2) In addition, the Plaintiff asserts that the instant land is more close to the shipping beach than the land No. 1, which is the comparative standard place, and urban planning facilities (roads) are scheduled adjacent to the instant land adjacent to the instant land, and that the above ground frequency buildings, such as the Dong (number 4 omitted) adjacent to the south of the instant land, should be removed as an illegal building. If removed, the prospects of the instant land are secured more, the Plaintiff asserts that the instant land is greater than the land No. 1 even in the case of the individual factors, taking into account the fact that the land is demolished.

However, according to the result of the on-site inspection by the court of the trial, even if the land in this case is close to the center of the shipping beach rather than the land No. 1, its extent seems insignificant, and even if urban planning facilities (road) are scheduled adjacent to the land in this case, it cannot be evaluated as different from the road at present, and there is no evidence that the above frequency buildings are illegal buildings to be removed.

Rather, as seen earlier, the instant land is abutting on the exclusive road for pedestrians and has no road available for automobiles unlike the land No. 1, and the purport of the entire pleadings as a result of the appraisal entrustment to the appraiser Nonparty 1 of the court of first instance, and the result of the on-site inspection by the court of first instance, the instant land is favorable to the view of the coast, but its length is shorter than the length, and it is somewhat inappropriate to build a large building, which is a standard form for neighboring use, because it is an irregular form, as well as rather than somewhat inappropriate to construct a large building, which is a standard form for neighboring use, in accordance with the district unit plan, etc. applicable to the instant land, etc., it is recognized that the said land cannot be used as a building site with the remaining part of the land, and if the said recognition was given up to the present situation of the use of the instant land, etc., it is difficult to view the instant land as more favorable than the land No. 1.

3) Justifiable compensation;

A) According to the appraiser Nonparty 1’s appraisal opinion adopted by the court of the first instance (as seen earlier, the difference in other factors is applied to the rate of 1.358 calculated to the third place below the decimal point), when calculating a justifiable compensation for the land of this case, 19,966,352,087 won (2,40,000 won officially announced land price of the first land x 1.0232 x regional factors x 1.00 x 1.00 x 1.051 x 0.951 x 1.358 x 6,295 m2).

B) As to this, the Plaintiff asserted that the above amount of compensation is too low compared to the compensation for expropriation on the land adjacent to the instant land (number 4 omitted).

However, in full view of the results of the fact-finding conducted by the court of first instance on the Pacific Appraisal Corporation, the State Appraisal Corporation of the Republic of Korea on the appraiser Nos. 1 and 4 of the court of first instance on the commission of appraisal on the appraiser Nos. 1 and 4 of the court of first instance on the part of the court of first instance, and the purport of the whole on-site verification conducted by the court of first instance on the part of the court of first instance on the part of the Plaintiff, it is recognized that the land, etc. used as a restaurant site, such as the frequency of sexual intercourse before the approval of the project for the public works of this case on the part of the court of first instance on the part of the public works of this case, and the above land, etc. was used as a restaurant site such as a house and the frequency of the above land

4) Sub-committee

Therefore, as the plaintiff seeks, 722,851,837 won (19,966,352,087 won - 19,243,50,250 won) and 505,173,750 won as cited in the judgment of the court of first instance, which are the part cited in the judgment of the court of first instance, from the above legitimate compensation to the plaintiff, shall be 5% per annum under the Civil Act from April 8, 2008 to May 28, 2010, the date following the date following the date following the date of expropriation, and 20% per annum from the following day to the date of full payment; 217,678,087 won (72,837 won - - 505,1737,250), which is 20% per annum from the date following the date following the date of expropriation to the date of full payment; 30% per annum from the date following the date after the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without any justifiable reason. Since the judgment of the court of first instance is unfair in some different conclusions, part of the plaintiff's appeal shall be accepted, and the part against the plaintiff corresponding to the above part of the judgment of the court of first instance which ruled against the plaintiff which ordered additional payment shall be revoked, order the defendant to pay the above money, and the remaining appeal of the plaintiff shall

Judges Choi Jae-man (Presiding Judge)