[1] In a case where a land is incorporated into a river area due to a low elevation due to an artificial act by a third party, whether the land price for compensation under Article 2 (1) of the Addenda to the former River Act should be considered in assessing the land price for the compensation (negative)

[2] The base date of evaluation for the compensation under Article 10 of the "Regulations on the Compensation for Land Incorporated into River" under Article 2 of the Addenda of the amended Rivers Act (Act No. 3782)

[1] Under Article 2 (1) of the Addenda of the former River Act (amended by Act No. 3782 of Dec. 31, 1984, among the Addenda of Act No. 2292 of Jan. 19, 1971), amendments to the former River Act (amended by Act No. 3782 of Dec. 31, 1984), only if there was no compensation provision on the land naturally becoming a river area under the provisions of the former River Act, the former River Act (amended by Act No. 5839 of Feb. 8, 1999) did not provide any compensation provision on the land excluded from the above compensation, the history of the River Act, Article 3782 of the amended Rule of the amended Rule of the River Act (amended by Presidential Decree No. 3782 of Jun. 12, 1986) provides for the compensation of land incorporated into a river area under the provisions of the Civil Act or the compensation provision on land incorporated into a public project by an artificial act, etc.

[2] In a case where a local government requested an assessment in accordance with Article 2 (1) of the Addenda of the former River Act (amended by Act No. 3782 of Dec. 31, 1984 among the Addenda of Act No. 2292 of Jan. 19, 1971) for the compensation of land incorporated into a river area under Article 2 (1) of the Addenda of the former River Act (amended by Act No. 3782 of Dec. 31, 1984), and decided the amount of the assessment as the compensation amount, but the relevant assessment amount is disputed, the base date of the assessment for the compensation under Article 10 of the Regulations on the Compensation for Land Incorporated into a River under Article 2 of Addenda of the amended Enforcement Rule of the River Act (amended by Act No. 3782 of Dec. 31, 1984) shall not be deemed as the time the local government requested an appraisal.

[1] Article 2(1) of the Addenda of the former River Act (amended by Act No. 3782 of Dec. 31, 1984 among the Addenda of Act No. 2292 of Jan. 19, 1971); Article 10 of the Regulations on Compensation for Transfer of Land into River under Article 2 of the Addenda of the amended Act (amended by Act No. 3782 of Dec. 31, 1984); Article 2(1) of the Addenda of the former River Act (amended by Act No. 2292 of Jan. 19, 1971); Article 10 of the Regulations on Compensation for Transfer of Land into River under Article 2 of the Addenda of the amended Act (amended by Act No. 3782 of Dec. 31, 1971)

[1] Supreme Court Decision 94Da25209 delivered on December 13, 1994 (Gong1995Sang, 480), Supreme Court Decision 96Da52496 delivered on May 30, 1997 (Gong1997Ha, 2007)

Plaintiff (Counterclaim Defendant) (Attorney Han Han-sung et al., Counsel for the plaintiff-appellant)

[Judgment of the court below] Defendant 1 and 1 others

Korea

Seoul High Court Decision 94Na24284, 24291, 24307 delivered on December 5, 1997

All appeals are dismissed. The costs of appeal by the Plaintiff (Counterclaim Defendant) are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) for each of the costs of appeal by the Seoul Special Metropolitan City.

1. We examine the grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter referred to as “Plaintiff”) and the attorney of the Plaintiff (hereinafter referred to as “Plaintiff”).

A. As to the ground of appeal No. 1-A

The court below affirmed the judgment below, based on its reasoning, based on its reasoning, that the land in this case was incorporated into Han River basin due to the act of gathering soil and sand in violation of the conditions of permission by the local bond employees, and that the change in the present land price due to the artificial act by the above earth, sand and rock gathering business operators in order to compensate for the land in this case was intended to request an appraisal based on the conditions immediately before the incorporation into a river area except for the subject of consideration (the first sand which is unfeasible), and to pay the plaintiff a sum of KRW 1,482,870,750 of the appraised value, but the plaintiff refused to receive it, and deposited this amount on February 13, 191. The plaintiff reserved the objection that the plaintiff would receive a partial set of the compensation for river acquisition on February 19, 191 and received the deposit money. In assessing the price of the present land in this case, the court below determined that the above change of the price of the land in this case was based on the status of the land immediately preceding incorporation into the river area.

In light of the above legal principles, the court below's determination that the new River Act has no provision on compensation for land excluded from the above compensation under Article 2 (1) of the Addenda of the River Act (amended by Act No. 2292 of Jan. 19, 1971, which was enforced from July 19, 1971; hereinafter referred to as the "new River Act") and its full text is "former River Act" before its full amendment, and that the new River Act has no provision on compensation for losses under Article 2 (1) of the Addenda of the Act (amended by Act No. 3782 of Dec. 31, 1984; see, e.g., Supreme Court Decision 90Da1697, Jun. 19, 1986; hereinafter referred to as "the new provision on compensation for losses under Article 2 of the Addenda of the River Act") is just and reasonable in light of the history of the River Act, and the legal principles as to the new provision on compensation for losses under Article 97 of the River Act.

B. As to the ground of appeal 1-B

As in this case, in a case where a local government requested an appraisal in accordance with the River Compensation Regulations for the compensation of land incorporated into a river area under the provisions of the Addenda of the amended Act, and the relevant appraised amount was determined as an indemnity amount, but the relevant appraised amount is disputed, the base date of the evaluation for the compensation under Article 10 of the River Compensation Regulations shall not be deemed to be the time when the local government requested an appraisal lawfully, and it shall not be deemed to be the time when the court requested an appraisal in a lawsuit disputing the compensation amount thereafter. The judgment of the court below to the same purport is just, and there is no error of law

C. As to the ground of appeal 2-A

According to the records, it is recognized that Defendant Seoul Special Metropolitan City’s calculation of KRW 1,482,870,750, which is the arithmetic mean of each appraisal result by requesting the Japanese Certified Public appraiser’s Joint Office and the Korea Appraisal Board for the appraisal of the land of this case is reasonable, and it cannot be said that there was any error of misconception of facts in violation of the rules of evidence, and the assertion that the compensation amount for the land of this case is excessive compared to the compensation amount for other land of this case is not acceptable.

D. As to the ground of appeal 2-B

The ground of appeal that Defendant Seoul Special Metropolitan City did not enter the two parcels of the land of this case in the deposit of the river incorporation compensation amount, and it did not provide compensation amount to the above two parcels of land, which is separate from the above 1,482,870,750 won, cannot be accepted since it is a new assertion that the fact-finding court did not hold the above compensation amount. In addition, according to the records, it is not possible to accept the plaintiff's ground of appeal that the above compensation amount was 1,482,870,750 won in a lump sum and the plaintiff's compensation amount was 1,482,870,750 won in the above 12 parcels of land adjacent to Seoul Special Metropolitan City. The plaintiff's above notification refused the receipt of compensation amount due to the dissatisfaction on the calculation basis of compensation amount, and the plaintiff's deposit of the above amount of compensation amount, which is the just compensation amount of the entire land of this case, and the plaintiff did not enter the above two parcels of land before and after receipt of the compensation amount.

2. We examine the grounds of appeal by Defendant Seoul Special Metropolitan City Attorney at once.

If a certain land is incorporated into a river area under the former River Act and the private right to the land is permanently extinguished, it is not sufficient to say that there is a punishment of sewage being flown only once a year and twice a year. The right to private right should be extinguished only when it becomes impossible to restore sewage to the original state due to the socially accepted social norms without flood or any other natural phenomenon, and such a public announcement is required.

In light of the records, the court below recognized that the time of incorporation of the land of this case into the river area was around February 1972, and determined that the Defendants were liable to pay compensation due to the incorporation of the land of this case into the river area as of June 1, 1964, because there is no evidence to acknowledge that the land of this case was discovered prior to the time of publication of the river area or that the land was announced as the river area at the time of its enforcement. Even if the land of this case was discovered into the river area around April 1971 as alleged in the grounds of appeal, the claim for compensation pursuant to Article 2 of the Addenda of the amended Act has occurred. Thus, regardless of whether the land of this case was discovered as the river area around April 1971 and around February 1972 after the enforcement of the new River Act, the Defendants are liable to pay compensation for the land of this case, and therefore, it cannot be said that the judgment below contains any error of law or misapprehension of the legal principles of the old and new River Act, as alleged in the grounds of appeal.

In addition, Supreme Court Decision 94Reda260 delivered on April 25, 1995 cited in the ground of appeal is different from this case, and it is not appropriate to invoke this case.

3. 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.

Justices Lee Yong-hun (Presiding Justice)