In a case where the remaining land is owned by joint owners under the Land Expropriation Act, whether each joint owner may request the remaining land expropriation for each share of ownership (affirmative), and the method of exercising the right to request the remaining land expropriation (=administrative litigation)

Even in cases where the remaining land is owned under the Land Expropriation Act, each co-owner may request the expropriation of the remaining land for each share of ownership, but in cases where a consultation on the purchase of the remaining land is not reached due to a request from a public project operator for consultation on the purchase of the remaining land, each co-owner may request the competent land expropriation committee to expropriate all the remaining land within the inspection period under Article 36 of the former Land Expropriation Act (amended by Act No. 5909 of Feb. 8, 199), and in cases where there is an objection to the adjudication on expropriation and its objection, the ruling authority and the public project operator as a co-defendant shall file an administrative lawsuit claiming the cancellation of the ruling and the increase in compensation, and the compensation for the remaining land shall not be claimed against the public project operator in civil procedure

Articles 36 and 48 of the former Land Expropriation Act (amended by Act No. 5909 of Feb. 8, 199)

Supreme Court Decision 88Nu852 Decided June 13, 1989 (Gong1989, 1094) Supreme Court Decision 93Nu20627 Decided September 15, 1995 (Gong1995Ha, 3414)

Plaintiff

Korea

Daejeon District Court Decision 2000Na5310 delivered on January 18, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the claim for remaining land expropriation compensation

In a case where the remaining land is owned jointly under the Land Expropriation Act, each co-owner may request the expropriation of the remaining land for each share of ownership. However, in order to request the expropriation of the remaining land, each co-owner may first request the public project operator to consult on the purchase of the remaining land and not reach an agreement, he may request the competent land expropriation committee to expropriate all the remaining land within the inspection period under Article 36 of the former Land Expropriation Act (amended by Act No. 5909 of Feb. 8, 199), and if he/she is dissatisfied with the adjudication of expropriation and its objection, the ruling authority and the public project operator shall jointly file an administrative litigation seeking the cancellation of the adjudication and the increase in compensation.

However, according to the records, there is no evidence to deem that the plaintiff of this case requested the competent Land Tribunal to accept the remaining land within the perusal period of the documents related to the application for expropriation ruling, and even if there is a dispute over the amount of compensation excluded from compensation for the remaining land, the ruling authority and the public project operator may institute an administrative litigation claiming the cancellation of the ruling and the increase in compensation with the joint defendant, and immediately, it cannot seek compensation for the remaining land due to civil litigation against the public project operator, the court below held that the compensation for the remaining land may be claimed by civil litigation, on the premise that the court below held that all the co-owners shall exercise the right to expropriate the remaining land indivisiblely and the co-owners shall not claim the expropriation of their shares under the Land Expropriation Act. However, the court below erred by misapprehending the legal principles on the claim for expropriation and the lawsuit for increase or decrease in compensation for the remaining land under the Land Expropriation Act, but the court below maintained the judgment of the first instance which rejected this part of the lawsuit on the grounds of the principle of prohibition of disadvantageous change and dismissed the plaintiff's appeal, which affected the outcome of the judgment.

2. As to the State’s compensation claim

The grounds of appeal as to this part of the petition of appeal are not indicated in the grounds of appeal, and the grounds of appeal indicate that “the Corporation shall pay compensation in 200,000 won per annum of compensation for losses it has not harvested in the 1999 and 2000.” However, it cannot be viewed that the judgment below does not have any specific and explicit reasons as to which part of the judgment below violated the law, and thus, the grounds of appeal as to this part are not submitted (see Supreme Court Decision 98Da41377 delivered on April 23, 199).

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

Justices Son Ji-yol (Presiding Justice)