[1] Whether the proviso of Article 48(2)1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5 on April 25, 2013 violates the principle of justifiable compensation and the principle of proportionality under the Constitution or exceeds the limits of delegated legislation (negative)

[2] Where a public project is publicly announced prior to the enforcement date of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5 on April 25, 2013, whether Article 4(1) of the Addenda of the said Enforcement Rule (amended by Ordinance of the Ministry of Land, Infrastructure and Transport, which provides that Article 48(2)1 of the said Enforcement Rule shall apply to public works for which public announcement and notification of a compensation plan was made after the enforcement of the said Enforcement Rule, to the specific method and criteria for calculating the amount of

[1] Article 77(4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects delegates matters concerning the detailed methods of calculating and assessing the amount of compensation for agricultural losses and the criteria for compensation to be determined by Ordinance of the Ministry of Land, Infrastructure and Transport. Following such delegation, Article 48(2) proviso 1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects amended by Ordinance of the Ministry of Land, Infrastructure and Transport (amended by Ordinance of the Ministry of Land, Infrastructure and Transport (hereinafter “Enforcement Rule of the Act”) was an exception to the agricultural compensation for actual income, where the actual income calculated based on the supporting data submitted by a farmer exceeds twice the average income by the same item of the same item, the “limited amount of compensation for actual income” was established by prescribing that the amount of sales double the average production by the relevant item of the same item

The proviso of Article 48(2)1 of the Enforcement Rule of the amended Enforcement Rule provides for the method of calculating a reasonable amount of compensation for actual income within the scope of guaranteeing the livelihood of a farmer within the period of preparation for replacement life due to actual farming, taking into account the fact that farming compensation is a compensation for the encouragement of the survival and support for livelihood of the farmer, the difficulty in calculating actual income, etc., and thus, it cannot be deemed that it violates the principle of fair compensation under the Constitution or the principle of proportionality, or deviates from the limit of the delegated legislation.

[2] Any farmer who has owned the pertinent land or been engaged in agriculture lawfully from the date of the public announcement of the authorization, even after the public announcement of the authorization, may continue farming from the relevant land until the date immediately preceding the date of expropriation. However, in cases where a farmer suspends farming due to any other cause unrelated to the relevant public works after the date of the public announcement of the authorization of the authorization of the authorization of the authorization of the authorization of the authorization of expropriation, it may be excluded from the subject of compensation. The fact that the public announcement of the authorization of the project is made cannot be deemed that a farmer has finally acquired a specific claim for farming compensation, and it shall be calculated specifically as at the

In addition, farming compensation pursuant to Article 48 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall be compensated for losses incurred as a result of no longer continued farming from the farmland incorporated after the commencement date of expropriation for two years in the future. Therefore, farming compensation will be compensated for future losses that have not yet occurred even at the time of the decision of expropriation.

Therefore, Article 4(1) of the Addenda to the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5 on April 25, 2013) provides that Article 4(1) of the Addenda to the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5) shall apply to public works for which public announcement and notification of a compensation plan has been made before the enforcement date of the amended Enforcement Rule (hereinafter “Enforcement Rule”) but it does not constitute a genuine legislation.

[1] Articles 23(3), 37(2), and 95 of the Constitution of the Republic of Korea; Article 7(4) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 48(2)1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 13(2) of the Constitution of the Republic of Korea; Article 48(2)1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 4(1) of the Addenda ( April 25, 2013)

Plaintiff (Law Firm Yun, Attorneys Ansan-type et al., Counsel for the plaintiff-appellant)

Korea Water Resources Corporation (Law Firm International, Attorneys Kang Young-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2018Nu20344 decided January 9, 2019

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

The grounds of appeal are examined.

1. Case summary and key issue

A. According to the reasoning of the lower judgment, the following circumstances are revealed.

(1) The Defendant is the implementer of the Busan (Business Name omitted) development project (hereinafter “instant project”). A public announcement of project approval (No. 2012-8888) on December 14, 2012 regarding the instant project was made on December 14, 2012, and the Defendant publicly announced the compensation plan for the instant project on September 13, 2013.

(2) The Plaintiff owned 192 square meters in the Busan Gangseo-gu, Busan Metropolitan City (number 1 omitted), 192 square meters in the warehouse site of the same Dong (number 2 omitted), 1,487 square meters in the same Dong (number 3 omitted), and 3,748 square meters in the same Dong (hereinafter “instant land”). Among them, the Plaintiff cultivated organic farming places in a way that 3,177 square meters in total of 297 square meters in the land (number 2 omitted) and 2,880 square meters in the (number 3 omitted), among the land (number 2 omitted), were cultivated in a manner that 361.4 square meters in the land (number 2 omitted), and were planted in a way that spawns and spaws are planted in the grave board (hereinafter “cre-sale land in the grave board”).

(3) As the Plaintiff and the Defendant did not reach an agreement on compensation for the instant land and its ground obstacles, the Defendant filed an application for adjudication of expropriation with the competent Central Land Expropriation Committee pursuant to Article 28 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”). Accordingly, on September 29, 2016, the Central Land Expropriation Committee set the date of expropriation for each of the instant land and obstacles, and for each of the agricultural losses (on November 22, 2016), and made adjudication of expropriation of KRW 11,072,10,000 as a lump sum of compensation for business suspension.

(4) On November 23, 2016, the Plaintiff filed the instant lawsuit claiming an increase in the “agricultural loss compensation amount” against the Defendant.

B. The main issue of the instant case is whether the Plaintiff’s agricultural compensation in the instant land should be calculated pursuant to Article 48(2) of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5, Apr. 25, 2013; hereinafter “former Enforcement Rule”), which applies at the time of the public announcement of the project approval (see, e.g., Supreme Court Decision 201Da1448, Apr. 25, 2013); or whether the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 5, Apr. 25, 2013; hereinafter “amended Enforcement Rule”) should be calculated in accordance with the proviso to Article 48(2)1 of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (hereinafter “Enforcement Rule”).

2. Regarding ground of appeal No. 2

(a) Amendment to the provisions on the calculation method of compensation for farming; and

(1) Article 48 of the former Enforcement Rule provides that where land (i.e., land actually used for cultivating crops or perennial plants) falling under Article 2 subparagraph 1 (a) (a) of the Farmland Act is incorporated into a zone where public works are performed, an amount calculated by multiplying the total amount of agricultural income by Do from among the total agricultural income from each Do agricultural research statistics conducted and announced annually by a statistics service agency under Article 3 subparagraph 3 of the Statistics Act on the area of the land in question by the total amount of agricultural income per unit cultivated area per Do (hereinafter “statistical income-based farming compensation”) by two years from the total amount of agricultural income per unit cultivated area per Do (hereinafter “statistical income-based farming loss compensation”) shall be compensated as the amount of farming loss: Provided, That with respect to farmland incorporated into farmland cultivated by a person who verifies actual income in accordance with the standards for recognition of actual income by the Minister of Land, Transport and Maritime Affairs after consultation with the Minister of Agriculture, Forestry and Fisheries, notwithstanding the provisions of paragraph (1), the amount calculated by multiplying the area per unit cultivated area by two years (hereinafter “the actual income”).

(2) Article 48 of the Enforcement Rule of the amended Enforcement Rule provides for "compensation for agricultural income applicable to statistical income" (Article 2 subparagraph 1 (a) of the Farmland Act and Article 2 (3) 2 (a) of the Enforcement Decree of the same Act (Article 2 subparagraph 1 (a) of the Farmland Act as production facilities for agricultural and livestock products installed on the land referred to in subparagraph 1 (a) of the same Article of the same Act, which are fixed greenhouses, mushrooms, greenhouses, and sites for its affiliated facilities) where land is incorporated into a zone where public works are performed (Article 2 subparagraph 1 (a) of the Farmland Act): Provided, That the Minister of Land, Infrastructure and Transport shall compensate for "compensation for agricultural income applicable to actual income," notwithstanding the provisions of paragraph (1) of the same Article, where the real income per unit cultivation area is remarkably higher than the average production area per unit (Article 2 subparagraph 2 of the Statistics Act) by taking into account the two-year average production area per unit (Article 3 subparagraph 3 of the same Act).

B. Whether the proviso of Article 48(2)1 of the amended Enforcement Rule is unconstitutional or invalid

(1) Compensation for losses in farming under Article 48 of the Enforcement Rule of the Land Compensation Act (hereinafter “agricultural compensation”) is separate from compensation for losses in relation to incorporated land and obstacles. It is intended to ensure that a farmer purchases substitute farmland to resume farming or convert it into another type of business by compensating for losses incurred as a result of a farmer’s failure to continue farming any longer due to the implementation of a public works project as incorporated into a zone where public works are performed, as well as compensation for business closure under Article 46 of the same Enforcement Rule for losses incurred as a result of a farmland being unable to continue farming due to the implementation of a public works project. The purpose of farming compensation is to ensure that the farmer purchases substitute farmland for the next two years, thereby continuing farming or converting it into another type of business. The farming compensation has the nature of indirect compensation and living compensation for the farmer’s livelihood during the preparatory period from the discontinuance of the existing agriculture to the commencement of a new occupation (see Supreme Court Decision 96Da3051,

(2) A farming compensation is a case where, regardless of the application of statistical income or between the computation of the amount of the compensation by applying the statistical income and the actual income of the farmer in question, the amount of the predetermined lost income in the future is estimated and compensated. Of course, a reasonable method to predict future lost income in the legislative policy should be prepared more accurately, but the legal nature differs from the “full compensation” for the objective value of existing formed property.

(3) The criteria for recognition of actual income from agricultural crops (Notice of the Ministry of Land, Infrastructure and Transport No. 2013-401, Jul. 5, 2013) provides that the amount calculated by dividing the actual income per unit area by the total area of agricultural crops and the total area of farmland shall be calculated by multiplying the total amount of the farmland per unit area by the income ratio, etc. by each Do of the data center on income from agricultural and livestock products surveyed and announced annually by the Administrator of the Rural Development Administration (Articles 3 and 5). In addition, the standards for recognition of actual income from agricultural crops include data proving the total income of agricultural crops necessary for calculating the actual income (Article 4), but there are many problems surrounding the verification of the total income of agricultural crops necessary for calculating the actual income from agricultural and agricultural products distribution

(4) Article 77(4) of the Land Compensation Act delegates to the Minister of Land, Infrastructure and Transport matters concerning the detailed method of calculating and evaluating the amount of compensation for agricultural losses and the criteria for compensation. Following such delegation, the proviso of Article 48(2)1 of the amended Enforcement Rule provides that, as an exception to compensation for farming applying the real income under Article 48(2)1 of the same Enforcement Rule, where the real income calculated based on the evidentiary data submitted by farmers exceeds twice the average income by the same item, the amount of sales double the average production by the relevant crop shall be considered as the real income.

(5) The proviso of Article 48(2)1 of the same Enforcement Rule provides for the method of calculating a reasonable amount of compensation in its own name by setting up a “limited amount of compensation for farming applying real income within the scope of ensuring the livelihood of farmers during the period of their preparation for replacement life due to actual farming, taking into account the fact that the compensation for farming is compensation for the future uncertain loss income to encourage the survival of farmers and support their livelihood, difficulties in calculating actual income, etc. Therefore, it cannot be deemed that Article 48(2)1 of the same Enforcement Rule violates the principle of fair compensation under the Constitution or goes beyond the bounds of the delegated legislation. Accordingly, the Plaintiff’s ground of appeal No. 2 that Article 48(2)1 of the same Enforcement Rule is unconstitutional and void is rejected.

3. Regarding ground of appeal No. 1

A. Interpretation of Article 4(1) of the Addenda to the Enforcement Rule of the Amendment

(1) Article 4(1) of the Addenda to the Enforcement Rule of the amended Enforcement Rule provides, “The amended provisions of Article 48(2) provide that “after the enforcement of these Rules, the provisions of the amended Enforcement Rule shall include cases applied mutatis mutandis pursuant to Article 26(1) of the Act) shall be applicable to public works that notify landowners and persons concerned of a compensation plan (hereinafter referred to as “instant supplementary provisions”).”

(2) The public announcement and notification of a compensation plan under Article 15 of the Land Compensation Act is made as part of the consultation procedure prior to project approval, and the public announcement and notification of a compensation plan under Article 26(1) of the Land Compensation Act is made as part of the consultation procedure after project approval is granted. Article 48(2) of the amended Enforcement Rule of the same Act clearly stipulates that ① after the enforcement of the amended Enforcement Rule, “public works for which public announcement and notification of a compensation plan is made as part of the consultation procedure prior to project approval” and ② after the enforcement of the amended Enforcement Rule, “public works for which public announcement and notification of a compensation plan is made as part of the consultation procedure after project

(3) The Plaintiff asserts that Article 48(2) of the former Enforcement Rule shall apply only to “public-service projects for which public announcement and notification of a compensation plan are made as part of the consultation procedure prior to project approval” after the enforcement of the amended Enforcement Rule, and that Article 48(2) of the former Enforcement Rule shall apply to “public-service projects for which public announcement and notification of a compensation plan are made as part of the consultation procedure after project approval is implemented.” However, this is inconsistent with the text of the Addenda of this case, and thus, cannot be accepted

(4) Supreme Court Decision 2010Du13890 Decided September 27, 2012, which the Plaintiff invoked, is not a procedure for public announcement and notification of a compensation plan under the Land Compensation Act, but a procedure for public announcement and notification of a project implementation plan under Article 31 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444, Feb. 6, 2009; hereinafter “Urban Improvement Act”), and is sufficient to undergo the procedure for public announcement and notification of a project implementation plan under Article 31 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents of Residential Buildings (hereinafter “Urban Improvement Act”), and

(5) Meanwhile, Articles 44(3) and 48(3)1 of the Enforcement Rule of the Land Compensation Act, upon delegation of Article 77(4) of the Land Compensation Act, referred to as “the date of the public announcement and notification of a compensation plan under Article 15(1) of the Land Compensation Act or the date of the public notification of the project approval under Article 22 of the Land Compensation Act, is called as “the date of the public notification of the project approval, etc.”, and the “land being used as farmland after the date of the public notification of the project approval, etc.” shall not be deemed as farmland under Article 48(1) and (2) of the Enforcement Rule

The purpose of the Land Compensation Act is to specifically define the scope of objects subject to expropriation and compensation through the project approval, and to provide landowners and persons concerned with the fact of the project approval in the Official Gazette by notifying landowners and persons concerned of the fact of the project approval, and by publicly announcing the details of land to be expropriated or used in the project area and the public announcement in the Official Gazette, so that landowners and persons concerned can transfer the objects or rights located in the planned project area or in the planned project area to be expropriated or out of the planned project area and obtain the right to receive compensation for the loss. After the public announcement of the project approval, there is a duty not to perform any act likely to hinder the implementation of the relevant public project within the planned project area (acquisition of rights, development activities not permitted, commencement of business and agriculture), while the change of situation occurred after the public announcement of the project approval after the public announcement of the project approval (see Article 48(3)1 of the Enforcement Decree of the Land Compensation Act) is to ensure that the project operator can efficiently perform the relevant public project by removing the objects of compensation for the public project from the scheduled project approval of the public announcement and announcement of the public announcement of the public announcement of the project approval of the public announcement of 15.

Therefore, the standard point of time to determine whether the pertinent public works are subject to farming compensation as the public and interested parties are officially known for the first time. On the other hand, the instant supplementary provision is clear that farmland constitutes farming compensation pursuant to Article 48 of the Enforcement Rule of the Land Compensation Act based on the “the “the “the “the “the “the “the” of the instant supplementary provision, etc. of the same Act,” but it is different from its function and character since Article 48(2) of the former Enforcement Rule should be applied as a detailed method and standard for calculating the amount of farming compensation, since the project operator’s activities are already conducted at the time of the enforcement of the amended Enforcement Rule, since it is certain degree of the project operator’s activities for the implementation of the public works.

B. Whether applying the proviso of Article 48(2)1 of the Enforcement Rule of the amended Enforcement Rule to the instant project pursuant to the supplementary provision of the instant case is unlawful against the principle of prohibition of retroactive legislation, the principle of protection of trust, etc.

(1) Retroactive legislation can be divided into a petition-based legislation that allows the application of a new legislation to the facts or legal relations that have already been completed and a quasi-appealed legislation that allows the application of the existing facts or legal relations to the existing ones. Of note, a petition-based legislation that deprives an individual of his/her legal status that has already been formed under the existing law through an ex post facto legislation is not permitted in accordance with the principle of a rule of law that covers the protection of individuals’ trust and legal stability. On the other hand, in principle, a non-petition-based legislation is allowed in principle, but its scope may be limited in the course of a bridge between the reasons for the public interest requiring a retroactive effect and the reasons for personal protection requesting a retroactive effect. In addition, the principle of prohibition of retroactive legislation is merely the meaning that the relevant law cannot be applied to the facts that have already been completed before the entry into force of the relevant law, and it does not limit the application of the law to the requirements that have already occurred (see, e.g., Supreme Court Decision 2015Du60020,

(2) Even in cases where the relevant statute is amended, unless otherwise provided in the transitional provision, an administrative disposition shall be based on the amended statute that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended statute provides a legal effect more unfavorable than the previous one in relation to the property rights of the people with respect to the existing facts or legal relations subject to the application of the amended Act, if such facts or legal relations are not completed or terminated before the enforcement of the amended Act, they shall not be deemed an infringement of property rights by retroactive legislation prohibited under the Constitution. In relation to the application of the amended Act, there is room for limiting the application of the amended Act in order to protect the trust of the people with respect to the existence of the statute prior to the amendment if it is recognized that the trust of the people is more worthy of protection than the public interest demand for the application of the amended Act (see Supreme Court Decision 97Nu13818, Mar. 10

(3) According to the Land Compensation Act, “pre-compensation” that is paid in full to landowners and persons concerned prior to the commencement of construction works for the relevant public works shall be calculated based on the principle (Article 62); the amount of compensation for losses by agreement shall be calculated on the basis of the price at the time the agreement is reached in cases of consultation; and on the price at the time of adjudication on expropriation or use in cases of adjudication (Article 67(1)). A project operator shall pay or deposit the compensation determined by the adjudication by the competent Land Tribunal until the commencement date of expropriation determined by the adjudication (Article 40(1) and (2)); a project operator shall acquire the ownership of land or goods at the commencement date of expropriation; and another right to the land or goods shall be extinguished at the same time (Article 45(1)). Subsequent to the public announcement of project approval, no person shall alter the form and quality of the publicly notified land, or destroy or remove goods that might hinder the project (Article 25(1)).

Therefore, farmers who own the relevant land or have been engaged in agriculture lawfully from the date of the public announcement of the public announcement of the authorization, may continue farming from the relevant land until the date immediately preceding the date of expropriation, even after the date of the public announcement of the authorization. However, in cases where farmers have suspended farming due to any other reason unrelated to the implementation of the relevant public works after the date of the public announcement of the authorization of the authorization of the authorization of expropriation, it may be excluded from the subject of compensation. The public announcement of the public announcement of the public announcement of the authorization does not necessarily mean that farmers have finally acquired the specific right to claim farming compensation, and it shall be calculated in detail

In addition, as seen earlier, farming compensation pursuant to Article 48 of the Enforcement Rule of the Land Compensation Act is to compensate for losses incurred as a result of the failure to continue farming any longer from the farmland incorporated after the commencement date of expropriation for the future two years. As such, farming compensation is to compensate for future losses that have not yet occurred even at the time of the decision of expropriation.

Therefore, although the supplementary provision of this case was publicly announced prior to the enforcement date of the amended Enforcement Rule of Article 48(2)1 of the amended Enforcement Rule concerning the detailed calculation method and criteria of the amount of farming compensation, it does not constitute the legislation of the said Act to apply the provision to public works for which the public announcement and notification of the compensation plan was made after the enforcement of the amended Enforcement Rule.

(4) In the case of the Plaintiff, according to the public announcement of project approval of the instant project on December 14, 2012, Article 48(2) of the former Enforcement Rule, which was applied at that time, was expected to be calculated in the amount of farming compensation. However, since the legal relationship on farming compensation between the farmer and the project implementer is not completed, the Plaintiff’s trust in the continuation of the business under Article 48(2) of the former Enforcement Rule is no longer deemed to be more protected than the public interest demand for the application of the proviso of Article 48(2)1 of the former Enforcement Rule.

(5) In the same purport, the lower court determined that the agricultural compensation amount should be calculated by applying Article 48(2) of the amended Enforcement Rule pursuant to the provisions of the Addenda of this case, since the instant project announced the compensation plan after the enforcement of the amended Enforcement Rule. In so doing, the lower court did not err by misapprehending the legal doctrine on the interpretation and application of the provisions of the Addenda of this case, the prohibition of retroactive legislation, the principle of protecting trust, etc., and thereby adversely affecting the conclusion

4. As to the third ground for appeal

This part of the grounds of appeal is that farming compensation should be made by applying the proviso of Article 48(2)2 of the amended Enforcement Rule in the case of “refilled land”. According to the records, the Plaintiff asserts that farming compensation should be made by applying Article 48(2) of the former Enforcement Rule in the case of “refilled land” until the lower court. However, it can be known that the Plaintiff only raised the aforementioned assertion in the final appeal. Thus, it cannot be a legitimate ground of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the 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 Park Jung-hwa (Presiding Justice)