Time to start the three-year extinctive prescription of a claim for damages due to a tort;

In order to proceed with the three-year extinctive prescription of the right to claim damages, it is reasonable to interpret that the victim should know the occurrence of damages and the perpetrator, and that the harmful act can claim damages caused by the tort as a tort. However, if the previous court has changed to the view that the owner has the right to claim compensation for losses or the right to claim the return of unjust enrichment against the concessionaire with respect to the loss of ownership caused by the wrongful disposal of the sub-divided rearrangement project implementer, such as this case, the previous court should consider that the owner has the right to claim compensation for losses or the right to claim the return of unjust enrichment against the project implementer by the Supreme Court en banc Decision 74Da1548 Decided April 22, 197

Article 766 of the Civil Act

Supreme Court Decision 76Da256 delivered on March 22, 1977 (Supreme Court Decision 11454 delivered on March 22, 197, Supreme Court Decision 251Da2984 delivered on February 22, 197, Supreme Court Decision 76Da2984 delivered on February 22, 197

Jung-hwan et al. and seven others

Seoul Metropolitan Government

Seoul Central District Court (73 Gohap4536) in the first instance trial

Supreme Court Decision 76Da256 Decided March 22, 1977

1. Of the original judgment, the part against the defendant ordering payment in excess of the amount ordered under the following two paragraphs shall be revoked and the plaintiffs' claim against that part shall be dismissed.

2. The defendant shall pay to the plaintiff Jeong Jong-hee the amount of 42,174 won, the amount of 14,058 won per annum from December 18, 1968 to each of the above amounts of 7,029 won, and the amount of 5% per annum from December 18, 1968 to each of the above amounts.

3. The defendant's remaining appeal is dismissed.

4. The total costs of the lawsuit shall be fifty equal to these expenses, forty nine equal to these expenses shall be borne by the plaintiffs, and the remainder by the defendants respectively.

5. The above paragraph 2 can be provisionally executed.

The defendant shall pay to the plaintiff Jeong Jong-sung an amount equivalent to 732,00 won per annum from December 18, 1968 to 5% per annum for each of the above amounts, and each of the above amounts, from December 18, 1968 to each of the above amounts.

Judgment that the lawsuit costs shall be borne by the defendant and provisional execution declaration

(In the trial, the claim has been reduced)

The original judgment shall be revoked.

The plaintiffs' claims are dismissed.

The judgment of both the first and second courts that the costs of lawsuit shall be borne by the plaintiffs.

1. Liability for damages;

According to each entry in the evidence Nos. 2-1, 2-1, and 2-1, each of the real estate listed in the separate sheet (the land in this case) can be acknowledged as being owned by the plaintiffs, for which the ownership transfer registration has been completed under the plaintiffs' names. The defendant, as the Construction Part No. 230 of Feb. 5, 1963, obtained authorization for the execution of a land readjustment project for the land in the area of the Myeon wooden District, including the land in this case, to implement the project, and issued a separate notice as to the land in this case on April 25 of the same year on the ground that the land in this case was actually used as a road from the previous date, without designating the land substitution for the above land pursuant to the latter part of Article 53 (2) of the Land Detailed Project Act, for the reason that the land in this case was actually used as a road, and after being incorporated into the road in whole, the land substitution plan and the land substitution for the above zone was designated and publicly announced as a land substitution for the above zone.

The plaintiffs asserted as the cause of the claim of this case. First, the defendant, when conducting the compartmentalization and rearrangement project as seen above with regard to the land of this case, without designating other substitute land as to the land of this case, and by making a final public announcement of replotting disposition without paying the liquidation money, the plaintiffs lose ownership to the land of this case, and as to the land of this case as of December 18, 1968, the plaintiffs sought payment of liquidation money equivalent to the amount obtained by deducting 30 percent of the average reduction rate within the above zone rearrangement project area from the market price amount of the land of this case as of December 18, 1968, but the defendant decided not to pay liquidation money without designating other substitute land for the plaintiffs who are the owners of the land of this case as of December 17, 1968, and it is a kind of fair administrative disposition with no other reason of invalidation. Thus, this disposition cannot be denied unless it is revoked by legitimate administrative litigation procedure or there is no other administrative disposition. Thus, the plaintiff's claim for the payment of liquidation money of this case can not be accepted.

Then, the defendant, without designating a different replotting, continuously using the land of this case as a road without paying the liquidation money, and caused damages to the plaintiffs. Thus, the defendant asserts that the plaintiffs suffered damages equivalent to the liquidation money for the land of this case. Thus, as seen above, the plaintiff completed the final public announcement of replotting disposition without designating the substitute land for the land of this case. Thus, as the plaintiff completed the final announcement of replotting disposition without paying the liquidation money, it shall be deemed that the land of this case was lost the ownership of this case at the end of the date of the public announcement of the above replotting disposition. Thus, in the implementation of the above land readjustment project, unless there are special circumstances, such as the plaintiffs, who are the owners of the land of this case, provided the land of this case with the land of this case without designating the substitute land of this case, the defendant, who is the project operator, lost the plaintiffs' ownership of the land of this case without paying the replotting money, thereby illegally implementing the land readjustment project within the limit of this. Thus, the defendant is liable to compensate the damages suffered

2. Defendant’s defense: the Defendant’s defense;

(A) Since the lawsuit in this case was filed without a prior trial procedure under the State Compensation Act or without a lapse of 3 months after the application for compensation, it should be dismissed as an unlawful lawsuit. Thus, in the case of the lawsuit in this case, it can be acknowledged by the whole purport of the party argument that the plaintiffs did not submit an application for compensation to the Compensation Council under the State Compensation Act. However, according to the Gap evidence No. 6 (Receipt Certification) without dispute over the establishment, it is recognized that the plaintiffs filed an application for compensation with the Compensation Council at the Ministry of Justice's headquarters of July 10, 1975 during the lawsuit in this case, and that the above defect was cured because it is obvious that the above application was filed more than 2 months until the closing of argument of party members after the lawsuit in this case, and therefore, the defendant's defense is without merit.

(B) The plaintiffs' claim against the land of this case is related to the duty of ownership transfer registration. Thus, since the ownership of the land of this case has yet to be paid to the plaintiffs, the right to the previous land which is not determined by the land substitution plan is extinguished at the time when the date when the land substitution plan is publicly announced expires, the plaintiffs' ownership of the land of this case has already been lost on December 17, 1968 when the land substitution disposition is publicly announced. Thus, there is no reason for the defendant's defense.

(C) The land of this case is not a land substitution by the latter part of Article 53(2) of the Land Readjustment Projects Act, and there is no ground for payment in illegal money. Thus, although the claim of this case is asserted to be unfair, it is obvious that the latter part of Article 53(2) of the Land Readjustment Projects Act does not aim to extinguish ownership without any compensation for the land in fact being the road, there is no ground for the defendant's assertion.

(D) The instant land became a road site under the relevant provisions of the Urban Planning Act, and the road so formed is applied mutatis mutandis by the provisions of the Road Act, and thus, the instant claim by the Plaintiffs without having gone through the procedures as stipulated in Article 79 of the Road Act is deemed unfair, but the Defendant’s assertion that the instant claim for damages equivalent to the liquidation amount due to the execution of the illegal land readjustment project is obviously unfair, is subject to consultation as stipulated in Article 79 of the Road Act, is also without merit.

(E) Since it is clear that the plaintiffs obtained more benefits than the amount claimed in the lawsuit in this case due to the land readjustment project in this case, they should be offset against the amount equal to the claim in this case, but in addition to applying the reduction rate of 29 percent (no dispute over the reduction rate) to the land in this case as a result of the land readjustment project in this case, it cannot be deemed that there is a benefit to deduct the plaintiffs. Therefore, the defendant's defense is not reasonable to determine the remaining points.

(F) In addition, the plaintiffs' right to claim damages of this case has expired five years since 1966 after the defendant commenced the implementation of the land readjustment project, and the extinctive prescription has already expired even if it was not exercised for three years counting from the time of the designation of land substitution substitution as of April 2, 1968, and even if it is not so, the extinctive prescription has expired after the lapse of three years from December 17, 1968, which is the date of the public announcement of the above replotting disposition. However, it is reasonable to interpret that the victim should actually know about the occurrence of damages and the perpetrator, and that the harmful act may claim damages caused by tort as a tort. Since the previous court did not consider that the owner has the right to claim compensation or the return of unjust enrichment from the above implementer of the land readjustment and rearrangement project in this case, it is obvious that the plaintiffs did not have the right to claim damages from the above plaintiff within the period of 15th day after the date of the above determination of the Supreme Court en banc Decision 2007Da15488, supra.

3. Damages;

The plaintiffs claim that the amount of damages to be paid by the defendant is the amount equivalent to the market price at the time of loss of ownership of the substitute area which could have been obtained if the land in this case had been designated as substitute area. Thus, the land readjustment project implementer did not have been provided with the land without compensation from the landowner, and the amount of damages to be paid by the landowner in case the land owner lost its ownership without designating the substitute area, and eventually, the amount of damages to be paid by the landowner shall not exceed the estimated extent when the land owner is assumed to pay the liquidation amount. Meanwhile, according to the Land substitution and Rearrangement Project Act, the project implementer obtains the authorization of the competent administrative agency in accordance with the prescribed procedure (Articles 46 and 47 of the Land substitution and Rearrangement Project Act) by taking into account the location, land category, environment, and other matters of the previous land and the land substitution plan (Article 52 of the Land substitution and Rearrangement Project Act) and the land size of the land in this case can not be determined by the land substitution and rearrangement project under its jurisdiction (Article 68 of the Land substitution and Rearrangement Project Act).

Furthermore, with respect to the amount of compensation, the average depreciation rate of the above project execution district, including the land in this case, is 29 percent as seen above. According to the appraisal result of the appraiser of the trial court of this case, it can be recognized that the amount assessed by comprehensively considering the location, land category, soil quality, environment, and other matters of the land in this case as of February 5, 1963, which was the date the execution of the land readjustment project in this case was authorized, is the same as that of the attached Table (A). Thus, the amount of damages equivalent to the liquidation amount of the land in this case shall be 112,464 won by aggregating the amount indicated in the attached Table (C) multiplied by the above ordinary price at the time. If the amount is divided according to the plaintiffs' shares, it shall be 112,464 won by adding the amount listed in the attached Table (C) to the area of each right stated in the attached Table (A).

4. Conclusion

Therefore, the defendant is obligated to pay damages for delay in civil affairs at the rate of 5% per annum from December 18, 1968 to full payment, as claimed by the plaintiffs as to the amount of damages equivalent to the liquidation amount for the land of this case, 42,174 won, 14,058 won, 14,058 won, 14,058 won, 7,029 won, 7,029 won, and 5% per annum from 1968 to 100. Thus, the plaintiffs' claim of this case shall be justified within the above scope, and the remaining claims shall be dismissed without merit. Since the defendant's appeal against the defendant who ordered payment exceeding the above cited amount among the original judgment is justified, the defendant's appeal against this part shall be revoked within the scope of the original judgment, and the defendant's appeal against this part shall be dismissed, and the defendant's remaining appeal shall be dismissed, and the provisional execution shall be omitted by applying Articles 96, 92 and 93 of the Civil Procedure Act.

Judges Kim Sang-won (Presiding Judge)