[1] Requirements for a project approval institution to obtain a project approval under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where a project operator, after obtaining a project approval, loses the public interest that can be used for the public, or the interests of the persons related to the project approval are considerably in violation of the principle of proportionality, or where the project operator loses the intent or ability to carry out the relevant public project, whether the right to expropriate can be exercised (negative)

[1] The project approval is determined as a project to expropriate or use land, etc. for a public project and form a specific right of expropriation under the condition that the project executor should take a certain procedure thereafter. Thus, even if the project falls under a project that can expropriate or use land, etc. for a public project, even if the project is deemed as a project that can expropriate or use land, etc. for public use, the project approval agency shall fairly compare and bridge the interests of the persons related to the project approval as well as the public interest and private interests with respect to the contents and method of the project, and between the public interest and private interests, and the comparison and bridge must conform to the principle of proportionality. In addition, the right of expropriation can not be granted to a person who has no intent or ability to realize the public interest by performing the relevant public project, and therefore, the project operator must have the intent and ability to perform the relevant public project.

[2] In light of the fundamental purport of Article 23 of the Constitution that public expropriation shall be limited to the minimum extent necessary to guarantee property rights under the Constitution, it is not permitted to exercise the right of expropriation which is against the public interest of the right of expropriation even though the project operator, after obtaining the project approval, has lost the public interest of the project operator, the interest of the person related to the project approval has considerably violated the principle of proportionality, or the project operator has lost its intent or ability to carry out the public interest of the right of expropriation.

[1] Article 2 subparag. 7 and Article 20 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 2 subparag. 7 and Article 20 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 2004Du14670 decided Apr. 29, 2005 (Gong2005Sang, 856)

Plaintiff (Law Firm Barun et al., Counsel for plaintiff)

The Central Land Tribunal (Attorney Lee Jae-hoon, Counsel for the defendant-appellant)

Intervenor Co., Ltd. (Law Firm International Law, Attorneys Kim Tae-woo et al., Counsel for the intervenor-appellant)

Busan High Court Decision 2008Nu1009 Decided December 5, 2008

The judgment below is reversed, and the case is remanded to Busan High Court.

Of the grounds of appeal, we examine the abuse of confinement rights.

Article 23 of the Constitution provides, “(1) The property rights of all citizens shall be guaranteed. The contents and limitations thereof shall be determined by Act. ② The exercise of property rights shall conform to the public welfare. ③ The expropriation, use or restriction of property rights due to public necessity and compensation therefor shall be governed by Act, but shall be paid due compensation.” The fundamental purpose of this provision is that the Constitution guarantees the free use, benefit and disposal of all citizens’ specific property rights as a matter of principle, and the expropriation, use or restriction of property rights due to public necessity shall be exceptionally allowed only when the requirements prescribed by the Constitution are met. In light of the fundamental purpose of the provision on the guarantee of property rights of our Constitution, public expropriation, which means the public authority and forced deprivation of property rights due to public necessity, shall be limited to the minimum inevitable extent in the request for the guarantee of property rights under the Constitution.

Meanwhile, Article 3(2) of the Addenda to the Industrial Sites and Development Act (Act No. 4574, Aug. 5, 1993) provides that when the detailed items, etc. of land, etc. to be expropriated or used are publicly announced, it shall be viewed as the approval of a project and its public announcement under the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on Acquisition of and Compensation for Land, etc. for Public Works, Act No. 6656, Feb. 4, 2002). Since the project approval is determined as the project to expropriate or use the land, etc. for public projects, the establishment of a specific right of expropriation under the condition that the operator of the public project should follow a certain procedure. Thus, even if the project falls under a project capable of expropriation or use of the external form of land, etc., even if the project approval institution has the public or private ability to expropriate the project, it shall be deemed that the project approval institution has a legitimate comparison of public and private interests between the public and private interests, and it shall be deemed that the project approval can be performed in proportion.

In addition, in light of the fundamental purpose of Article 23 of the Constitution that public expropriation shall be limited to the minimum extent necessary to guarantee property rights under the Constitution, it shall not be permitted as it constitutes abuse of the right of expropriation, which is contrary to the public interest of the right of expropriation, even though the project operator has lost public interest, the interest of the person related to the project approval, or the project operator has lost its intent or ability to implement the public service.

According to evidence duly examined by the court below and the court below, the non-party 1 and the non-party 2 were located in the non-party 2's original residential area 0. The non-party 1 and the non-party 2 were located in the non-party 2's original residential area 12,60m2. The non-party 1 and the non-party 2 were located in the non-party 2's original residential area 0. The non-party 1 were located in the non-party 2's original residential area 0. The non-party 1 and the non-party 2 were the non-party 2's original residential area 0. The non-party 1 and the non-party 2 were the non-party 2's original residential area 0. The non-party 1 and the non-party 1 were the non-party 2's original residential area 9. The non-party 1 and the non-party 2's main residential area 9. The non-party 1 and the non-party 2's main residential area 9.

In light of the aforementioned legal principles and facts, there is room to view that Nonparty 1 had already lost the ability to carry out the instant project at the time of the instant expropriation ruling due to the aggravation of financial situation after obtaining project approval, and therefore, Nonparty 1’s request for adjudication on expropriation of each of the instant lands and received the said adjudication may be deemed as an abuse of the right to expropriate.

Nevertheless, the lower court did not fully examine whether Nonparty 1 lost the capacity to carry out the instant project after obtaining project approval, and, even if part of each of the instant lands was sold by auction thereafter, it cannot be deemed that the instant project was in a situation where the realization of the instant project was impossible, and solely on the grounds stated in its reasoning, determined that the instant expropriation ruling cannot be deemed an abuse of the right to expropriate. In so doing, the lower court erred by misapprehending the legal doctrine on the abuse of the right to expropriate, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Shin Young-chul (Presiding Justice)