Where the amount of compensation can be calculated by excluding the development gains when they are included in the officially announced land price.

Since development gains accrued from the implementation of a project can only be included in the objective value of the land to be expropriated at the time of expropriation, it is reasonable to exclude the development gains from the implementation of the project in a case where the officially announced land price of the reference land, which is the basis for the calculation of compensation for losses under Article 46 (2) of the former Land Expropriation Act (amended by Act No. 4483 of Dec. 31, 191), is included in the calculation of compensation for losses, and to evaluate the compensation for losses. However, in order to exclude the development gains from the officially announced land price of the reference land including the development gains, it is insufficient to say that the change in the officially announced land price of the reference land in a neighboring area where there is no rate of change in the officially announced land price of the reference land in comparison with that of the publicly announced land price of the previous year is somewhat higher than that of the land price of the adjacent area where the land to be expropriated becomes more than the naturally increased land

Article 46(2) of the former Land Expropriation Act (amended by Act No. 4483, Dec. 31, 1991); Articles 9 and 10 of the Public Notice of Values and Appraisal of Lands, etc. Act

Supreme Court Decision 93Nu5062 delivered on July 13, 1993 (dong) 92Nu17709 delivered on July 16, 1993

[Defendant-Appellee] Plaintiff 1 et al.

Central Land Tribunal and one other Defendants (Attorney Lee Jae-ok, Counsel for the defendant-appellant)

Seoul High Court Decision 92Gu9823 delivered on November 4, 1992

The appeal is dismissed.

The costs of appeal shall be assessed against the defendants.

We examine the grounds of appeal.

1. Article 46 (2) of the former Land Expropriation Act (amended by Act No. 4120, Apr. 1, 1989; Act No. 4483, Dec. 31, 1991) provides that "the compensation for land shall be based on the officially announced land price under the Public Notice of Values and Appraisal of Lands, etc. Act; however, the compensation for land shall be based on the price appraised by taking into account the utilization plan of the land in question, the price fluctuation rate, the price increase rate, and other matters of neighboring land unrelated to the area in question, from the basic date to the basic date of adjudication; and since the development gains from the implementation of the project in question only arise from the implementation of the project in question, they cannot be included in the objective value of the land at the time of expropriation; therefore, if the development gains from the implementation of the project in question per se of the officially announced land price of the reference land, which is the basis for calculating the amount of compensation for loss, are included in the principle of reasonable compensation.

2. However, in order to exclude development gains from the officially announced land price, the mere reason why the change rate of the officially announced land price in comparison with the officially announced land price in the previous year of the standard land is somewhat higher than the change rate of land price in the neighboring area where no public project is performed, is insufficient. The difference in the land price is significant and the land price of the land subject to expropriation is deemed to have increased above the naturally increased rate of land price due to a significant change in the rate of land price.

3. Examining the reasoning of the lower judgment in light of the record, the lower court rejected the Nonparty’s appraisal of the land at issue on January 1, 1991, on the ground that, in assessing the amount of compensation for the land to be expropriated, the appraisal corporation and the ASEAN’s appraisal corporation’s respective appraisal based on the land to be expropriated in the instant case, based on the officially announced land price of January 1, 1991, compared to the officially announced land price of January 1, 1991, the average increase rate of 11.87% or 11.95% (the average increase rate of 3 neighboring cities’ land prices), which is the difference in the officially announced land price of January 1, 1991 in comparison with the officially announced land price of the instant land during the same period, on the ground that the development gains from the instant development project are reflected in the officially announced land price of the instant land, the appraisal of the land after the basic date of the appraisal is somewhat higher than the officially announced land price of the previous year, and thus, it cannot be determined as lawful for each of the instant land appraisal.

4. In light of the above legal principles, even if development gains are included in the officially announced land price on the basis of the officially announced land price, such elements shall not be considered in the evaluation. However, the court below made a decision to the effect that there is no material to readily conclude that development gains are included in the officially announced land price in this case, and therefore, it shall be evaluated based on the officially announced land price itself. In light of the records, the court below's findings of facts and determination on the above points are sufficiently justified. Therefore, the decision of the court below is justified in the result of the decision that the court below should consider the officially announced land price as the basis for calculating the amount of compensation for losses. Thus, there is no error of law by misunderstanding the rules of evidence, such as theory of lawsuit, incomplete deliberation, or misapprehension of legal principles, which affected the conclusion of judgment.

5. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)