[1] Requirements and criteria for exercising a redemptive right under Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where the operator of the new airport construction project under the New Airport Construction Promotion Act, while carrying out the new airport construction project at the second stage of Incheon International Airport, obtained land located in the old hills to remove hills that obstruct the safe operation of an aircraft, and completed the cutting work, the case holding that, on the ground that the cutting work is completed, it is difficult to deem that the land was unnecessary to carry out the relevant project, and thus, there was no repurchase right to the relevant land

[1] The redemptive right under Article 91 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor may be exercised to the effect that “the whole or part of the acquired land becomes unnecessary due to the discontinuation or alteration of the pertinent project and other causes.” Here, “the pertinent project” refers to a specific public project that is the object of acquisition or expropriation of the land, and “the acquired land becomes unnecessary” refers to a case where it is no longer necessary to use the acquired land for the relevant project due to the discontinuation or alteration of the specific public project, which is the object of acquisition, and other causes, and the issue of whether the acquired land is unnecessary or not shall be determined objectively and reasonably in light of the purpose and contents of the pertinent public project, the details and scope of the acquisition of the land, the relationship with the relevant land and its use, etc.

[2] In a case where the operator of the new airport construction project under the New Airport Construction Promotion Act performed the site creation work, which is prior to the construction of airport facilities project in the second stage of the Incheon International Airport construction project, and completed the cutting work after acquiring land located in the old hill region in order to remove hills that obstruct the safe operation of aircraft as an appurtenant work, the case holding that, in a case where maintaining the current status of the land that completed the cutting work, is essential for the safe operation of aircraft entering and departing from the Incheon State's port of supply, and it is reasonable to deem that the purpose of the project is to include the maintenance of the current state, not just for the removal of the disabled hills but also for the maintenance of the current state, considering various circumstances, including the fact that the land is continuously used or necessary for the project, and that the need for public interest has not been extinguished, a repurchase right to the land has not been created.

[1] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 94Da61441 delivered on November 28, 1995 (Gong1996Sang, 155) Supreme Court Decision 97Da36835 delivered on November 11, 1997 (Gong1997Ha, 3774) Supreme Court Decision 2009Da43041 Delivered on October 15, 2009 (Gong2009Ha, 1849)

Plaintiff 1 (Law Firm Young-jin, Attorneys Song Hun-sik et al., Counsel for the plaintiff-appellant)

Plaintiff 2

The Incheon Metropolitan City Mayor (Law Firm Chungcheong, Attorneys Gyeong-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2009Na67490, 67506 decided December 30, 2009

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

The grounds of appeal are examined.

The redemptive right under Article 91 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) may be exercised to “the case where all or part of the acquired land becomes unnecessary due to the discontinuation, alteration, or any other cause of the relevant project.” Here, the term “relevant project” refers to a specific public project which is the object of acquiring or expropriation of the land, and the case where the acquired land becomes unnecessary” means the case where the need for use of the land has ceased due to the discontinuation, alteration, or any other cause of the specific public project which is the object of acquiring the land. Whether the acquired land has become unnecessary shall be determined objectively and reasonably in light of the purpose and contents of the relevant public project, the details and scope of the acquisition of the land, the relationship with the relevant land and its use, etc. (see, e.g., Supreme Court Decisions 94Da6141, Nov. 28, 195; 2009Da43014, Oct. 15, 2009).

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendant, as the implementer of the new airport construction project under the Act on the Promotion of the New Airport Construction, performed the site creation project, which is the pre-construction project of Incheon International Airport 2-level airport construction project, and as part of the construction, performed the appurtenant construction project, such as mooring site construction project and the old hill removal, which obstructs the safe operation of aircraft (hereinafter referred to as the “instant project”), as part of the construction, and the Defendant agreed upon each of the instant land located in the Incheon National Airport provided by the Plaintiffs for the implementation of the instant project and completed the cutting work of each of the instant land, and completed the cutting work of each of the instant land, on the ground that the Plaintiffs completed the cutting work, as long as the cutting work was completed, the need no longer needs to use each of the instant land due to the completion of the instant project. Accordingly, the delivery of a duplicate of the complaint of this case to the Defendant, and deposit the amount equivalent to the compensation for each of the instant land.

Therefore, each of the lands of this case was acquired through consultation for the construction of old hill removal, which obstructs the safe operation of aircraft entering and departing from the Incheon State's port, and maintaining the current status of each of the lands of this case, which completed cutting work, is essential for the safe operation of aircraft entering and leaving the Incheon State's port. Thus, it is reasonable to view that the purpose of the project of this case is not to eliminate the above hills, but to maintain the current state. Each of the lands of this case is used or necessary for the project of this case, and it can be deemed that there was no need for public interest as it is used or necessary for the project of this case. Meanwhile, it is difficult to view that each of the lands of this case was not necessary for the project of this case, considering that there was no way to prevent the execution of acts that interfere with the safe operation of aircraft after the redemption of the ownership of each of the lands of this case to the plaintiffs.

Nevertheless, the lower court determined that, once the cutting of each of the lands of this case was completed, each of the lands of this case was unnecessary for the project of this case, and that the Plaintiffs had a repurchase right to each of the lands of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the requirements for repurchase under the Public Works Act, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal

Therefore, without examining the Plaintiff 1’s grounds of appeal and the Defendant’s 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 Ahn Dai-hee (Presiding Justice)